Vollmer v. Vollmer

ON PETITION FOR REHEARING. Counsel for defendant contends, in his petition for rehearing, that this court did not decide the "real question" presented. It is readily admitted that, in view of the rather wide range followed by counsel on both sides, the court experienced some difficulty in determining the "real question" for decision. It was felt, however, that, since the petition was presented on behalf of the defendant, we would not go far afield in deciding what her counsel represented to be the "real question." Their brief was entitled: "Defendant's Brief on Application for Suit Money and Alimony Pending Appeal." The brief starts out as follows:

"This is an original application made in this court for suit money and alimony pending appeal."

On the same page the following statement was made:

"The application also prayed for an order staying all proceedings on the appeal by appellant herein, and enjoining him from further prosecuting his appeal until he complies with such order as this court shall make with reference to suit money and attorneys' fees."

Further on counsel state:

". . . ., this is an original application made in this court and when we come to specify the amount we are asking the court to grant us pending the appeal, we ask for the same amount which the district court, upon the trial of the issues, and by its findings and decree, decided we were entitled to receive, namely. . . . ."

Having denied the "original application made in this court for suit money and alimony pending appeal," there was nothing else to determine, and a further examination of the briefs filed by counsel, who now complain, convinces us that we were justified in this view.

This court will not decide whether it will hear the appeal of a plaintiff in a divorce case, who has failed to *Page 400 comply with an order of the trial court, directing him to pay the wife, as alimony, moneys necessary to enable her to support herself and their children, during the pendency of the appeal, until that question is presented and necessary to be determined.

The petition is denied.

Budge, Givens, Taylor and T. Bailey Lee, JJ., concur.

Petition for rehearing denied.