Prosser v. Prosser

Rothrock, Cii. J.

The question presented in this case is, whether a judge in vacation, upon the commencement of a suit for divorce, and before the term at which the defendant is required to appear to the action, may render a j udgment for temporary alimony, upon, an application made for that purpose.

Section 2226 of tbe Code provides that “tbe court may order either party to pay the clerk a sum of money for the separate support and maintenance of the adverse party and the children, and to enable such party to prosecute or defend the action.” The power to make the order is, by this provision, conferred upon the court, and not upon the judge in vacation. In all cases under our laws, where a judge is authorized to make orders or exercise judicial functions in vacation, the authority is expressly conferred by statute. In some, parts of the record in the case at bar, it does not appear affirmatively that the court was not in session when the order was made.’ Rut in the order it was held that the judge of the court in vacation may hear and determine the motion. Counsel for appellant claim in argument that the motion was heard and determined, and judgment rendered, in vacation, and, as the appellee does not appear and combat such claim, we adopt that construction of the record. We think the judge in vacation was not authorized by law to render the j udgment appealed from. '

Reversed.