Sowder v. Sowder

A. Weight, ■ J.,

delivered the opinion of the Court.

The decree of the Circuit' Judge in this cause, is affirmed.

The bill was filed for a divorce from the bonds of matrimony, by the wife against the husband, and she obtained a decree and was restored to all the estate that came by her. The Circuit Judge, in view of all the facts before him, further decreed to complainant the sum of $250 00, to defray all her reasonable expenses in prosecuting the suit, and that defendant pay the costs.

The complainant alone, complains of this decree. The testimony upon which the decree was based, was derived from witnesses examined, orally, in open court, as is the law and practice under the act of 1835, ch. 26, § 22, (0. & N. Rev., 262.) No depositions appear to have been taken or filed, and no bill of exceptions made, placing of record, the proof before the Circuit Court, so that this Court could have before it the evidence upon which the Circuit Judge acted. We. have nothing but the pleadings and decree; the bill affording, if true, a proper cause for relief. The decree in its recitals of acts proved, shows that the Circuit Judge found the bill true.

In such a case, we cannot disturb the decree of the Circuit Court. We are forced to presume that, in all respects, he acted properly upon the facts.

The allowance to the wife, was a matter of legal discretion with the Circuit Judge, and we cannot revise or change what he has done, without the facts before him. Robinson vs. Robinson, 7 Humph., 440; act of 1835, ch. 265, § 10, (C. & N. Rev., 259.)

No reference to the clerk and master was asked by the complainants, as to the amount to be allowed her; and the decree is not erroneous under the rule, in Burdine vs. Shelton, 10 Yerg., 41. The facts which the Court considered as proved on the hearing, are sufficiently stated in the decree.

Decree affirmed.