Warner v. Burton , 7 Ark. 144 ( 1851 )

Mr: Chief Justice Johnson

delivered the opinion of the Court.

This is an application for a supersedeas to the Lafayette Circuit Court. From the facts as presented by^tlie record, we think it clear that the Court had the power to do the act complained of, and whether the power has been rightfully exercised or not, is not inquirable into in this form of proceeding. It was said by the Supreme Court of Ohio, in the case of Dorsey v. Goodenow, (Wrights Rep. 120,) that “Power is possessed by the Court to make an allowance to the wife, ■pendente lite. In a proper case made, the Court will make an allowance large enough to enable her to carry on her suit, and to subsist upon while it is pending.” That case is in harmony with all the authorities which we have been able to consult upon the subject. If the Court had the power in this case to make an allowance out of the husband’s estate to enable the wife to pay the fees of her attorney, and thereby to carry on her suit, we think it clearly follows that the attorney was equally entitled to protection when an attempt was made to dismiss the suit, and that, too, under circumstances strongly indicating collusion between his client and defendant to cheat and defraud him out of his fees and disbursements. The power of the Court over the subject being conceded, there is an end of this application, as we are not at liberty to enquire into any errors or irregularities which may have intervened in the exercise of such powers. The order complained of is merely interlocutory, and its merits can only be investigated when the whole case upon a final decree shall be presented. This Court in the case of Carnall v. Crawford county, (6 Eng. 618) held that before final judgment nothing short of a clear defect of power in the subordinate court, or clear breach of duty, and irreparable mischief by delay, should make a case for interposition; otherwise, the extraordinary powers of superintending control would conflict with, and in effect, supersede the ordinary appellate jurisdiction as regulated by law. The application is therefore refused.