Clopton v. Clopton

ANGELLOTTI, J.

Plaintiff recovered judgment in an action brought by her to obtain a decree requiring defendant,

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Hoggart Clopton, her husband, to pay monthly a certain sum for her maintenance and support. The judgment therein required said defendant to pay her seventy-five dollars per month for maintenance, as well as two hundred and fifty dollars for her counsel fees. Pearl Clopton and Hugh Clopton were parties defendant in said action, they being the respective grantees of said Hoggatt Clopton of certain parcels of real property owned by him at the time of his marriage to plaintiff, the theory of plaintiff being that the conveyances to them by her husband were without consideration and were made to enable him to escape her claim for support and maintenance. On July 1, 1910, the defendants’ motion for a new trial was denied. An appeal was taken by all the defendants from the order denying the motion for a new trial, which appeal is still pending.

During the pendency of this appeal plaintiff gave to the defendants written notice of a motion to be made November 14, 1910, for an order requiring defendant Hoggatt Clopton to pay plaintiff five hundred dollars as attorneys’ fees for prosecuting the suit on appeal, and fifty dollars as suit money in preparing her brief and otherwise appearing in the supreme court.

On November 14, 1910, pursuant to such notice, plaintiff orally moved the court for an order requiring defendant Hoggatt Clopton to pay to plaintiff five hundred dollars for her attorney fees on such appeal, and one hundred dollars per month for alimony and support of plaintiff pending such appeal, and fifty dollars suit monéy for preparing her briefs and otherwise appearing in the supreme court.

Nothing was said either in the written notice or in the motion itself about making the land conveyed to Pearl Clop-ton and Hugh Clopton liable for any of the amounts that might be ordered paid, or subjecting any of such land to a lien for the payment thereof.

Neither defendant Pearl Clopton nor Hugh Clopton is shown to have taken any part in the proceedings on the hearing of the motion, apparently assuming that no relief was asked against them or their property, which they were entirely warranted in doing in view of the terms of both notice and oral motion. Defendant Ploggatt Clopton alone objected to the introduction of evidence offered by plaintiff, excepted to