McKay v. Superior Court

HENSHAW, J. This is a hearing upon an original application for a writ of review. The unquestioned facts shown by the return are the following: Upon the sixteenth day of June, 1884, Emma J. McKay, then the wife of the petitioner herein, Angus McKay, obtained a decree of divorce from her husband. The decree awarded to her the care, custody, and control of the children of the marriage, Horton L. McKay, aged five years, and Ethel M. McKay, aged three years. It contained, however, no provisions for alimony for the maintenance and support of the minor children. Ho appeal was taken from this decree, and it has long since become a final adjudication. Ho further proceedings of any kind were had in that action until May of the current year, when Emma J. McKay, wrho had since remarried, and is now Emma J. Polastri, filed in the superior court, and in the action in which the decree of divorce was granted, a petition setting forth the decree, the award to her of the care, custody, and control of the children, who are still minors, and averring that no provision had been made by the court for their maintenance and support, prayed an order do compel the defendant in that action, the petitioner herein, to pay fifty dollars per month for the past support of each of the children, and fifty dollars per month for the future support of each of 'them until the further order of court. Upon hearing, and over the objection of defendant, the order was made. From this order defendant perfected his appeal, therewith giving a bond to stay execution. Ho objection is made to the form, -substance, or sufficiency of this undertaking.

After perfecting his appeal the defendant was cited to show cause why he should not be punished for contempt in refusing to comply with the terms of the order, and to make the payments contemplated therein, and notwithstanding the showing made by him in answer to the citation that he had perfected an appeal from said order, and upon advice of counsel believed that his appeal with its accompanying bond operated as a stay of all proceedings under the order, the trial court was about to pronounce him in contempt and to punish him therefor, when, [145]under a separate petition setting up these facts, he here obtained a temporary order staying proceedings, and an alternative order to show cause why all proceedings should not be stayed until the determination of his appeal.

Thereupon Emma J. Polastri, on behalf of and as guardian of the minor children, presented her petition to the superior court in the action of McKay v. McKay, setting up the fact that the defendant McKay had appealed from the order fixing a sum for the maintenance of the children, and that two hundred and fifty dollars attorney’s fees and forty dollars costs for printing briefs upon appeal were necessary disbursements to be made by and in behalf of the minors to the end that they might properly present their response in the appellate court. The court then made its order directing this petitioner to pay the sum of two hundred and fifty dollars for the indicated purposes. The payment of money contemplated by this order being less than three hundred dollars, and thus no appeal lying therefrom, he sought and obtained this writ of review.