Courtney v. Courtney , 129 Ind. 272 ( 1891 )

Elliott, J. —

America Courtney, the wife of the appellant, Andrew J. Courtney, filed a petition for a divorce. Various orders were made in the cause, among them an order requiring appellant to pay into court for the usé of his wife in preparing for trial, the sum of fifty dollars. The appellee was represented by Messrs. Griffith and Works who acted as her attorneys. The appellee duly filed a dismissal in the office of the clerk during vacation, and the clerk entered an order dismissing the suit. Subsequently Messrs. Griffith and Works filed a motion to vacate the order of dismissal, and asking an allowance of fifty dollars for their fee in prosecuting the suit of America Courtney against her husband. The motion was sustained and the allowance decreed.

It is evident that the-actual controversy is as to the right of Griffith and Works to a money judgment. It may possibly be true that, as an incident of this fight and as collateral to it, the question of the correctness of the ruling vacating the motion to dismiss is involved, but even if this be true the question is incidental and collateral and not controlling. The element which gives character to the case is the demand for the recovery of a judgment for money, and as the recovery sought is only fifty dollars the case is within the jurisdiction of the Appellate Court. It is, therefore, ordered that it be transferred to the docket of that court.