Bordeaux v. Bordeaux , 26 Mont. 533 ( 1902 )

MR JUSTICE.1 PIGOTT

delivered the opinion of tbe court.

Judgment of divorce was entered in favor of the plaintiff for an offense committed by the defendant. From the judgment and an order refusing her motion, for a new trial the defendant has appealed. She now applies toi this court for an order requiring the respondent to pay to her the stun of $5,000 as a reasonable fee for the services of her counsel rendered and to be rendered on the appeals, and to pay also- the costs of the transcript, of her appearance fee in this court, and of printing her brief for this court; and also requiring the respondent to pay for her support and maintenance pending the appeals a sum in excess of the amount allowed by the district court. The power of this court to grant the order prayed for is challenged by the respondent.

By virtue of Section 11 of Article VIII of the Constitution of Montana, district courts have original jurisdiction of actions for divorce. While such an action is pending, the district court or its judge may, as is provided in Section 191 of the Civil Code, in its or his discretion require the husband to-pa,y alimony and suit money; and the “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.” (Section 1895, Code of Civil Procedure.)

Whether tire district court or judge has power, pending appeal, to require the husband to p-ay to the wife money necessary to prosecute or defend against an appeal in a divorce case is a question reserved as unnecessary to be decided. As to the conclusion On this point reacted in Reilly v. Reilly, 60 California Reports, 625, we express no opinion. Suffice it to' say that this application seeks to invoke the exercise of original jurisdiction, and that the constitution has not, either expressly or by implication, conferred upon the supreme court original jurisdiction in actions for divorce. The source of our jurisdiction is found in Sections 2 and 3 of Article VIII of that instrument, and in neither is there authority for the relief sought by the applicant. To the complete exercise of appellate jurisdiction this court is empowered to issue and to hear and determine such “original and remedial writs as may be necessary or proper1.” Complete exercise of appellate jurisdiction in the case at bar does not demand such a writ, nor in any wise depiend upon its issuance; nor does the appellant ask for it. We remark, also', that Section 1130 of the Code of Civil Procedure, providing Hr at whenever an appeal is perfected “it stays all further proceedings in the court below, upon the judgment or order appealed from,, or upon the matters embraced therein, """ * ® but the court below- may proceed upon any other matter embraced in the action and not affected by the order appealed from,” does not grant to this court the. power which the appellant asks to be -exercised.

Nor is the order prayed for one falling within the general and inherent powers of this court. Many decisions are produced which are asserted by counsel to uphold the position of the appellant. Some of the cases are directly in point, and fully support the contention. Of these, Lake v. Lake, 16 Nevada Reports, 363, and Id., 17 Nevada Reports, 230 (30 Pac. 878), is the strongest. Other cases, owing to the difference between the law of and the practice prevailing in the states where they were decided and the law and practice in this state, are of no value. Neither the courts which administered justice according to the course and practice of the common law, nor courts of chancery, were clothed with jurisdiction of divorce causes-. In the ecclesiastical courts, and in them only, resided the power to declare judicial dissolution of the bonds of matrimony. In the absence of tribunals of the kind last mentioned, the states of the TJnion have, with few exceptions, lodged with their courts of equity jurisdiction over such causes. In. Montana an- action of divorce is a suit in equity. According to the equity practice, an appeal removed the whole caseh^-all questions of law and of fact — to the higher court, where it was tried anew upon the depositions presented to the chancellor a quo, or upon such depositions and further evidence reduced to- writing, and a decree entered upon the merits-. During the pendency of the appeal tire suit so transferred was in the higher court, and hence it might, in general, make such orders as the court or chancellor of first instance could have made. Such, as We understand, is the procedure still in vogue in certain of the states. In Montana, However, the contrary practice prevails. The action — the entire case — -is not transferred by appeal. Questions of law only are presented on appeal, even where the relief sought is equitable in character. The action itself is still pending in the lower court. On an appeal only questions of law are tried; neither the mere weight of -evidence in substantial conflict nor the credibility of the witnesses is re-examined, nor is evidence adduced. Except in so- far as affected by the appeal, the cause remains in the district court, the primary forum. The supreme court may affirm, reverse, or modify tire judgment or order’ appealed from, and direct tire proper judgment or order to be entered, or direct a new trial or further proceedings to- be had (Section 21, Code of Civil Procedure), but the judgment of the supreme court affects only the judgment or order of the lower’ court, and must be certified to' the court from which the appeal was taken and in which the action is pending. This is manifest from an examination of the organic law and the statutes. Express recognition of it is fo-und in Section 1130, supra. This distinction has been -often overlooked, as appears from many of the opinions read in support of tire -present proceeding.

The application is dismissed for want of jurisdiction to entertain it.

Dismissed.