Storke v. Storke

Harrison, J. The superior court rendered a judgment herein which was entered January 18, 1895, by which it was decreed “that the marriage between the said plaintiff and the said defendant be dissolved, and the same is hereby dissolved, and the said parties are, and each of them is, freed and absolutely released from the bonds of matrimony and all obligations thereof; and it is further ordered, adjudged, and decreed that the plaintiff pay to the defendant the sum of two hundred and fifty dollars alimony, and two hundred and fifty dollars counsel fees.” February 12, 1895, the court, upon the application of the defendant setting forth that she desired to move for a new trial, and to appeal from the order denying the same if it should be denied by the court, and that it was necessary to have the testimony written out, and that she had no means to pay for the same, ordered that the plaintiff pay to the defendant on or before the eighteenth day of February, 1895, the sum of three hundred and fifty dollars to defray the cost of transcribing said testimony. The defendant gave notice of her intention to move for a new trial February 12th, and on March 28th, within the time allowed therefor by the court, presented and served upon the plaintiff her proposed statement on motion for a new trial. Amendments thereto were proposed by the plaintiff, and the judge before whom the cause was tried designated May 8th [50]as the day on which he would settle the statement. On that day the matter came on for settlement, and the judge continued the same until July 8th, reciting in his order of continuance the previous order requiring the plaintiff to deposit with the clerk three hundred and fifty dollars, and that, “through his inability to comply with said order,” the plaintiff had not deposited the same. No further proceedings appear to have been taken toward a settlement of the statement, and on November 6th the defendant presented her petition to the superior court, setting forth the foregoing facts, and stating that she has been advised by her counsel that she has substantia] grounds upon which to make a motion for a new trial, but that she has not the means to defray the expense thereof or to procure a transcription of the reporter’s notes, and “that plaintiff is now, and at all times since the eighteenth day of February, 1895, has been, unable to pay her the money necessary to procure the said testimony,” and asked that said judgment be vacated and set aside. Notice of this application was given to the plaintiff, and, after hearing the parties thereon, the court made an order that “the said decree and judgment in favor of plaintiff, C. A. Storke, and against defendant, Yda Addis Storke, filed and entered January 18, 1895, decreeing a divorce between said plaintiff and defendant, be, and each of them are, hereby vacated and set aside.” From this order the present appeal has been taken. The court, also, at the time of making its order, made certain findings of fact as the basis thereof, in which it found “that the statement on motion for a new trial prepared by defendant's attorney, and presented and served as in the preceding finding mentioned and found, represented as correctly as possible the proceedings had on the trial of said cause,” but that the judge was unable to settle the said statement without having the testimony written out, and also “that the plaintiff is now, and at all times since the eighteenth day of February, 1895, has been, unable to pay defendant the money necessary to procure the said testimony.”