Opinion
No. 36253.
January 27, 1947.
APPEAL AND ERROR. Costs.
Appeal would be dismissed for failure of prosecution, and appellee would be awarded, in addition to costs and statutory penalty, a judgment for amount of attorney's fee, and amount due appellee as support money, awarded in the court below and not paid by appellant, plus an amount as attorney's fee in the Supreme Court.
APPEAL from the chancery court of Jones county. HON. GEO. B. NEVILLE, Chancellor.
T.J. Willis, of Hattiesburg, for appellant.
We have been furnished with a copy of the motion to dismiss this appeal, and to enter a judgment against the appellant on the supersedeas bond for a sum of money, reached by calculation, including the monthly allotment made to the children, which sum was superseded by the appeal bond. The motion to dismiss should be sustained for the reason that no assignment of error or brief has been filed for appellant in this case. When the writer of the response was employed, the case had already been tried in the lower court and on the statement of facts made to counsel as to what had happened in the trial of this case, the conclusion was reached that an appeal to this Court would result in a reversal of the case. When the transcript of the record was made and the appeal filed in this Court, an examination thereof showed that there was no reversable error in the case. The decree entered awarding the care and custody of the children to the mother and the payment of a monthly allotment for their care and support had been based on the finding of fact. The entire finding of facts supporting the decree was in the province of the trial court and this Court does not reverse on findings of facts. It would be unnecessary to burden the Court with this response were it not for the fact that the father, appellant here, had the care and custody of the children at the time of the entrance of this decree. The supersedeas bond superseded the award of the children to the mother. The father retained the care and custody of the children and has paid all the expenses of their care and custody. The mother has not paid a penny. How can she recover for their care and custody from the father when he had the care and custody, and spent more money on them than had been awarded by this trial court? This Court is not a trier of facts, hence we are not submitting affidavits to that effect. And the affidavit that has been made on the part of the appellee studiously avoided stating that she has spent one penny for the care and custody of the children during the time elapsed since the trial in the lower court. The proper order in this Court would be to dismiss the case, fixing the amount of the attorney's fee to be awarded the appellee for the appearance in this Court. If a controversy arises as to who has supported the children the lower court should settle that question. We submit that the motion should be overruled in every particular except for the attorney's fee for the appearance in this Court.
Stevens Cannada, of Jackson, for appellee.
The time for filing of the assignment of error brief by the appellant in the appeal of this case is long since past, and no assignment of error, brief or entry of appearance has been made by appellant or his attorneys. This cause was set on the docket of this Court for hearing on December 9, 1946, which time has now passed, and neither appellant nor his attorney has filed any brief, or made any entrance whatsoever, and, therefore, under the rules of this Court, it is just and proper that this appeal be dismissed for lack of prosecution.
Rule 20 of the Supreme Court.
That the chancery court of this State has the authority to decree alimony, and also additional sums to the wife for her use and benefit as attorney's fees, upon a proper set of facts, is well settled.
Sims v. Sims, 122 Miss. 745, 85 So. 73; Porter v. Porter, 41 Miss. 116; Suter v. Suter, 72 Miss. 345, 16 So. 673; Reed v. Reed, 85 Miss. 126, 37 So. 642; Franklin v. Franklin, 109 Miss. 163, 68 So. 74; Smithson v. Smithson, 113 Miss. 644, 74 So. 609; Aldridge v. Aldridge, 116 Miss. 385, 77 So. 150; Brown v. Brown, 123 Miss. 125, 85 So. 180; Elam v. Elam, 129 Miss. 36, 91 So. 702; Gresham v. Gresham, 198 Miss. 43, 21 So.2d 414; McNees v. McNees (Miss.), 24 So.2d 751.
The record in this cause amply discloses all of the necessary facts to authorize the chancery court to make the decree which it did with reference to alimony and support and maintenance funds as well as the sum allowed to the defendant-appellee for her use and benefit as attorney's fees.
A dismissal of this appeal carries with it the affirmance of the decree of the court below and this case should certainly be dismissed.
Rule 20 of the Supreme Court.
The authority of this court to order the payment to the wife by the husband of certain sums for her use and benefit as attorney's fees in resisting an appeal to this Court by the husband is well settled.
Hall v. Hall, 77 Miss. 741, 27 So. 636; Franklin v. Franklin, supra; Smithson v. Smithson, supra; Brown v. Brown, supra; Price v. Price, 181 Miss. 539, 179 So. 855.
Section 1973 of the Code of 1942 directs that the judgment of this Court on a dismissal of the appeal by the court, where a bond has been given for a supersedeas, shall be for the money adjudged or decreed against appellant, and damages and costs, against all the obligors in the bond who may be living at that time, and execution may be issued thereon accordingly.
Code of 1942, Secs. 1189, 1973.
This appeal will be dismissed for failure of prosecution, and the appellee will be awarded, in addition to costs and statutory penalty, a judgment of $50, attorney's fee, and $220 due her on January 1, 1947, as support money, awarded her in the court below, aggregating $270, and not paid by the appellant; also the sum of $50 as an attorney's fee in the Supreme Court.