Weishaupt v. Weishaupt

OPINION ON FIRST APPEAL. Cole, J. According to. the rule established by this court as to what should be deemed a frivolous pleading, the demurrer in this • case clearly was not of that character. Whether the demurrer would have been held bad on argument, is a question not now before us-. This is an appeal from the order adjudging the demurrer: frivolous; and' the only question, therefore, is, whether ■ the demurrer can be considered frivolous, and not whether it was well taken. When the appeal is from a judgment on a demurrer for frivolousness, then this court has held that if the demurrer was bad the judgment would not be reversed,, although it might think the court below erred in holding the demurrer frivolous. The reasons for this ruling are given in Cobb v. Harrison, 20 Wis. 625, and Decker v. Trilling, 24 id. 610. [624] But when the appeal is from the order, then a different rule obtains. We only then investigate the case far enough to determine whether the demurrer is frivolous. The circuit court ordered and adjudged that the demurrer was frivolous, and that the plaintiff have judgment as prayed in the complaint, unless the defendant answered within twenty days and paid ten dollars costs of the motion. It would seem as if this leave to answer amply protected the rights of the defendant, and that really nothing was gained by the appeal except additional costs and expense. But as we have the power in divorce suits to require the husband to pay the expense of litigation, we have concluded to require that the defendant pay the proper costs of this court, even while we reverse the order. This will not include any attorney’s fee, but merely the fees of the clerk and necessary disbursements. By the Court. — The order of the circuit court is reversed and the cause remanded for further proceed ings. OPINION ON SECOND APPEAL. Cole, J. This is an appeal from an order requiring the defendant to pay to the attorneys of the plaintiff the sum of fifty dollars for the purpose of prosecuting the action. The principal ground for a divorce from the bonds of matrimony is, that the defendant, being of sufficient ability, refuses and neglects to provide for the support and maintenance of his wife and child. The application for suit money was made upon the affidavit of the plaintiff before service of the complaint. The record shows, however, that the complaint was served before the hearing of the application. It is objected that the application should have been on petition, and not by motion. We fail to perceive much force in this objection. Of course the moving papers should show that an action for a divorce has been actually commenced, and that a meritorious cause [625] for dissolving the marriage exists. But whether this appears by petition or by affidavits seems to us quite unimportant. The affidavit and complaint in the present case we think do show that, although the defendant has sufficient ability, yet he wholly refuses and neglects to provide for the plaintiff and her child. She states that he has not furnished either herself or child any provisions or clothing during all the time she has been in Milwaukee, and that all the money he has ever given her since he came to this country was $30, and that he paid the freight and charges on her goods from Germany, amounting to the sum of $30 more. She has been compelled to support herself and child by her own exertions and labor; and in August, 1869, was sick for three weeks, and was compelled to employ a physician, whom he refused to pay; and also refused and neglected to furnish her the necessary help and assistance which she required and needed. The defendant is an able-bodied man, and has fully twelve hundred dollars in ready money or available securities He is able to support his wife and child, yet makes no provision for them, and even neglects in sickness to provide medical aid for his wife, but leaves her destitute of the necessary help and assistance. It seems to us that these statements, if true, show- that the defendant wholly neglects to provide for his wife and child, while having the means to support them; and lay the foundation for a divorce from the bonds of matrimony. In other words, a meritorious cause of action appears, within the doctrine of the adjudged casesand the court properly exercised its discretion by requiring the defendant to pay such a sum as will enable the plaintiff to employ counsel to conduct the suit. The amount directed to be paid is reasonable. There is a motion for suit money also in this court on this appeal. This motion is granted, and twenty-five dollars suit money is allowed. By the Court. — The order appealed from is affirmed.