Baker v. Baker

VAN DYKE, J.

This is an appeal from an order requiring the defendant in said action to pay the plaintiff the sum of three hundred dollars as counsel fee and alimony,

pendente lite,

and from an order refusing to vacate and set aside said order entered on the twenty-seventh day of November, 1899, and requiring the defendant to pay the said sum as alimony and counsel fee within two days after the service of said last-mentioned order, of date December 8, 1899. The action was commenced November 27, 1899, for a divorce upon the ground of extreme cruelty, and upon filing the complaint the court made an order,

ex parte,

requiring the defendant to pay the plaintiff two hundred and fifty dollars alimony and fifty dollars attorney fee, within five days, which is the first order appealed from. On December 4, 1899, the defendant filed a verified answer, denying the material allegations of the complaint, and averring that he was possessed of no property except some personal property, the value of which did not exceed five hundred dollars, and that his income did not exceed twenty-five dollars a month. The defendant also, with his answer, served notice of a motion to vacate the said order for alimony and counsel fee, upon the grounds, among others, that the said order w'as made without notice to defendant, and that the defendant had not the means to pay the amount directed to be paid by said order. At the hearing of defendant’s motion to vacate the

ex parte

order for alimony, evidence was introduced, parol and documentary, from which it appears that the defendant, with his former wife, on July 31, 1897, conveyed all his real estate to his two sons and a daughter. The first wife, who joined in these deeds of conveyances, thereafter died, and defendant and plaintiff herein were married June 29, 1899. The conveyances to the sons and daughter were by way of gift, there being no monetary

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consideration. It appeared from the testimony that thereafter, when any real estate was sold, the defendant joined in1 the deeds with the children, the purchaser requiring it, and that the same had been assessed to him after the conveyance as it had been before, as he had not told the assessor that the ownership had been transferred. There is no evidence or pretense that the conveyances were made in fraud of the plaintiff’s right, or in anticipation of the marriage of plaintiff with defendant, nor could there well be, as his former wife was still living, who joined in the conveyances. The transfer of title to the children, therefore, was good, and could not be questioned, unless by his creditors, at the time of or before notice of such conveyances. Aside from the real estate which had been so conveyed to the children, it appeared on the hearing that the defendant was possessed of only a small amount of personal property, consisting of some cows, horses, and wagons, and old farming implements of the value of about four hundred and seventy dollars, and which he testified he did not think could be sold at forced sale for more than three hundred dollars.