Rees v. Rees , 188 Miss. 256 ( 1940 )

At a vacation hearing had, as this record shows, by the consent of the parties, the chancellor made an order for the payment to appellee of the sum of $200 for solicitor's fees in her divorce suit then pending against appellant. From this order appellant requested and obtained from the chancellor an order allowing an interlocutory appeal to this Court.

Appellee has moved to dismiss the appeal because not allowable under section 14, Code 1930, as appellee contends. Were this a new question we might be disposed to sustain the motion on the ground that the allowance of the solicitor's fee in a divorce case is a mere procedural step entirely apart from the merits of the litigation — that such an allowance is analogous to costs. But for years interlocutory appeals from such orders have been entertained, and inasmuch as the statute has been re-enacted in the same words since those decisions, the rule has now become a part of the statute. Some among those cases are: McFarland v. McFarland, 64 Miss. 449, 1 So. 508; Parker v. Parker, 71 Miss. 164, 14 So. 459; Bradford v. Bradford, 80 Miss. 467, 31 So. 963; Reed v. Reed, 85 Miss. 126, 37 So. 642; Ross v. Ross, 89 Miss. 66, 42 So. 382; Robinson v. Robinson, 112 Miss. 224, 72 So. 923; Evans v. Evans, 126 Miss. 1, 88 So. 481; McNeil v. McNeil,127 Miss. 616, 90 So. 327.

The order appealed from was entered on September 28, 1939, and the notice given the court reporter to transcribe the stenographic notes was given on October 9, 1939. Appellee has moved to strike the court reporter's transcript because the notice was not given within the ten days prescribed by statute, section 725, Code 1930, as amended by chapter 236, Laws 1936. This motion must be sustained under the authority of Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787 and the cases cited in the opinion therein, as well as several other cases to the same effect.

Appellee has moved for an order to be made by us allowing her a solicitor's fee for the present appeal, and has suggested $100 in accordance with the usual practice of allowing a fee in one-half the amount fixed for services in the trial court. The usual practice mentioned here has had application where the appeal here involved the case on its merits. What is before us now is a mere collateral matter, and we think that when compared with the $200 in the trial court, a fee of $35, although small, is all that this present appeal will bear.

Motion to dismiss appeal overruled, and case reset for first call in March; motion to strike court reporter's notes sustained; and motion for the allowance of a solicitor's fee on this appeal is sustained.