
    MARY SANDERSON v. THOMAS SANDERSON.
    No. 1218.
    Motion for Suit Money, Counsel Fees and Temporary Alimony Pending Appeal.
    Argued October 6, 1919.
    Decided October 8, 1919.
    Kemp and Edings, JJ., and Circuit Judge Banks in Place of Cóke, C. J., Absent.
   Per Curiam:

This is a motion by Mary Sanderson, libellant in the above entitled cause, praying that she be granted and allowed her expenses together with costs incurred and to be incurred in this court, temporary alimony and counsel fees for the preparation and presentation of this appeal.

The facts and circumstances surrounding this cause which we think necessary to an understanding of the question presented are as follows: An action of divorce having been instituted by the said Mary Sanderson the circuit judge before whom the action was pending entered an order requiring the libellee to pay to the libellant temporary alimony, counsel fees and costs of court, the temporary alimony to be paid until the further order of that court. The libellee in response to the libel filed his answer and cross-libel and upon a hearing the libel was dismissed and the libellee granted a divorce upon his cross-libel. The decision was rendered granting the libel-lee a divorce upon his cross-libel upon the 2d • day of May of this year. On the 8th day of May libellant filed her motion before the circuit judge asking that she be granted suit money and counsel fees to defray the expenses of an appeal to the supreme court from the decision and decree dismissing her libel and granting the libellee a divorce upon his cross-libel and praying further that the libellee be required to provide the necessary appeal bond, or in lieu thereof to deposit the sum of $50 in this court as by statute provided. This motion was heard by the circuit judge and after a hearing all of the relief prayed for was denied. Again, on the 24th day of July of this year, the libellant moved the circuit judge before whom the matter was pending that she be granted temporary alimony pending her appeal, which upon hearing Avas also denied. The libellee having failed to comply with the order of the circuit judge entered immediately after the filing of the libel commanding him to pay temporary alimony, counsel fees and costs of court the libellant procured an order from the circuit judge commanding the libellee to appear before him at a time and place certain to show causé why he should not be adjudged guilty of contempt for a failure to comply with said order. After a hearing upon said order to show cause on the 24th day of July of this year the libellee was by the circuit judge discharged. The libellant having perfected her appeal and the cause being now pending in this court the motion first referred to, and upon which argument has been heard, was filed in this court.

The principal question which has been argued in this court is as to the authority of this court in any event to grant temporary alimony, counsel fees and expenses, but we do not deem it necessary or proper under the circumstances of this case for us to decide that question. The libellant has had the same request twice refused by the circuit judge after a hearing upon the facts.

The refusal of the circuit judge to grant her the temporary alimony, counsel fees and expenses in the preparation and presentation of the appeal of said cause has been included in the appellant’s notice of appeal and will no doubt be inquired into when the case is finally presented in this court and the relief denied by the circuit judge allowed if the decision below is found to be erroneous. Under these circumstances we think that it would not be proper, granting that we have the authority, to enter any order at this time requiring the libellee to pay to the libellant alimony, counsel fees or expense money.

E. L. Grace for the motion.

A. M. Cristy contra.

The motion is denied.  