Hay v. Hay , 40 Idaho 624 ( 1925 )

The respondent filed herein her motion for an order requiring appellant to pay the clerk of this court for her use and benefit certain sums of money to cover expenses, attorneys' fees and support and maintenance during the pendency of the appeal from the order denying chance of venue. She also asks certain additional sums to pay for medical attention and board and room rent already incurred. The motion was resisted by appellant on several grounds, one of which is that there is on deposit in the First National Bank of St. Maries, to the credit of respondent, the sum of $3,000, which this court said, in Hay v. Hay, ante, p. 159, 232 P. 895, "The record clearly shows that the money had been deposited by plaintiff to defendant's credit and that plaintiff retained no control over it. The money belonged to defendant."

Original jurisdiction in the matter of allowance for attorneys' fees, suit money and alimony pendente lite is vested in the district court, C. S., secs. 4642, 4653; and, as was said by this court in Callahan v. Dunn, 30 Idaho 231,164 P. 357, "such orders are made by this court only where it is necessary to a complete exercise of its appellate jurisdiction." (See, also, Enders v. Enders, 34 Idaho 381,201 P. 714, 18 A.L.R. 1492.)

In view of the fact that there is in the St. Maries Bank a deposit of $3,000 to the credit of respondent, which she can secure by the presentation of a check therefor (Hay v. Hay,ante, p. 159, 232 P. 895), and in view of the financial condition of both parties, as the same is made to appear from the affidavits on file in this proceeding, we conclude that it is not necessary to the exercise of the appellate jurisdiction of this court to direct appellant to pay respondent any sum of money for the purpose indicated, and that it would be improper to do so. Motion denied.

William A. Lee, C.J., Budge, Givens and Taylor, JJ., concur.