Bohnert v. Bohnert , 91 Cal. 428 ( 1891 )

Garoutte, J.

This is an appeal from two certain orders made after judgment for plaintiff in an action of divorce based upon the adultery of the defendant.

Upon a showing by the affidavit of defendant that she desired in good faith to appeal to the supreme court from the judgment rendered against her in the aforesaid action; that she was advised by the attorneys who appeared for her at the trial in the lower court that she has good grounds for appeal; that she has no attorneys to prosecute such appeal, and no means to retain such attorneys; that she has no funds from which to pay the costs and expenses of such appeal, and has no means for her personal support during the pendency of such appeal, etc., — the court made an order that the plaintiff pay into court the following sums, to wit: “ The sum of $87.80, to be paid out forthwith, as expenses for transcribing the testimony on the part of the defendant, already incurred; the sum of $75 as incidental expenses in perfecting said appeal, including clerk’s fees and expense of printing transcript herein, and filing the same with the clerk of the supreme court; and the sum of $300, attorneys’ fees for preparing said cause for appeal, and arguing the same in the supreme court, to be paid said attorneys when the transcript in the said cause is ready for filing with the clerk of the supreme court; and that plaintiff pay alimony to the said defendant, the sum of $20 per month, from the date of the judgment herein during the pendency of the appeal.” The court also made an order that “the plaintiff pay to the clerk of said court the amount of $269.90, to be by said clerk retained, and to await further action herein.” The foregoing was the amount of defendant’s costs, incurred in the trial of the cause as settled by the court. Plaintiff appeals from the foregoing orders.

Section 137 of the Civil Code provides that “ when an action for divorce is pending, the court may, in its discretion, require the husband to pay, as alimony, any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action.” Section 1049 of the Code of Civil Procedure provides: “ An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.”

As to the granting of alimony pendente lite, that is a matter resting in the sound discretion of the court, and this record discloses nothing to justify us in disturbing that discretion as exercised by the trial court in this cause. Under section 137 of the Civil Code, the power to make an allowance to the wife for her support as alimony, or an allowance to her for the purpose of defending or prosecuting the action, is not exhausted upon the rendition of the judgment in the trial court. (Reilly v. Reilly, 60 Cal. 624; Ex parte Winter, 70 Cal. 291; Larkin v. Larkin, 71 Cal. 330.) The case of Everett v. Everett, 52 Cal. 384, is not in conflict with the foregoing authorities. In that casa the order was made under another section of the Civil Code, and was made after final judgment, and was in no sense an order for alimony made pendente lite. The order to pay the amount of the attorneys’ fees into court is not void, under the authority of Sharon v. Sharon, 75 Cal. 37; for it is not “a-direct judgment for money in favor of persons not parties to the suit.” (See Robinson v. Robinson, 79 Cal. 511.)

The fact that the court ordered the clerk to retain in his possession until further order the amount ordered to be paid by plaintiff for witness fees affords no grounds of complaint by plaintiff, for he is not injured by that portion of the order.

Let the orders be affirmed.

Harrison, J., and Paterson, J., concurred.

Hearing in Bank denied.