Hill v. Hill

WILSON, J.

By appellant's motion we are asked to render an advisory or recommendatory opinion whereby we would be committed in advance on an important question that may be presented by respondent in his resistance of the appeal from a judgment in his favor.

An interlocutory decree of divorce was entered on August 23, 1946, in favor of respondent in which appellant was awarded the sum of $5,690 as attorney’s fees in addition to the amount previously awarded to her and paid by respondent. On August 29, 1946, respondent forwarded to appellant a check drawn in her favor for said sum of $5,690.

Appellant has moved this court “for an order directing that she may receive payment of, and enforce payment of” said sum “without prejudice to the right of appellant to prosecute her appeal from all other parts and portions of said interlocutory judgment of divorce.” The motion is made on the ground that “appellant and her attorney of record are entitled to demand and receive said sum without prejudice to the right of appellant to prosecute her appeal from all other portions of said interlocutory judgment of divorce. ...”

In the affidavit of appellant’s attorney he states that appellant “suspecting entrapment, has not accepted, used or

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cashed said check for fear that her use thereof might jeopardize this pending appeal and might be used as the basis of a motion by respondent to dismiss her said appeal.”

In respondent’s affidavit in opposition to the motion he informs us that he has paid to appellant $4,500 as attorney’s fees, $2,144 for the reporter’s transcript on appeal, together with other items of costs, and that he has been ordered by the trial court to pay the cost of printing appellant’s opening and closing briefs on appeal. The court found that appellant owns separate property consisting of stocks, bonds and cash aggregating $20,524.15. Appellant’s application for alimony pending appeal was denied.

In the case of

Storke

v.

Storke,