State Ex Rel. Milyanic v. Eddy

I concur in the denial of the writ, but do not entirely concur in the reasons given therefor. Costs and counsel fees were unknown to the common law. They are creatures of statute. Attorneys were then and are now officers of the court. The statute authorizing suit money and allowances to a wife, in terms provides, that there must be a pending suit before it can be done. There was no suit pending when application was made by the relator for suit money. The suit had been dismissed. She desired to begin a new suit by obtaining a writ from this Court, and it was for this purpose that suit money was asked. An appeal is a new suit, not a continuation of the one decided, as is well settled by the cases cited in the foregoing opinion. How can the statute be construed to apply to a suit not pending? It is said that a twilight zone has been created, and the statute should be so construed to cover this twilight zone or hiatus. If the legislature has not made provision for the wife in this statute, (which is an innovation upon the common law), for suit money where there is no suit, but one is contemplated by appeal, the courts should not legislate by construction to remedy what they might think was an oversight. The legislature may have acted advisedly to have an end of litigation. Where the language of the statute is free from ambiguity and the intent is plain, there is no occasion for interpretation by a court. "It is not allowable to interpret what has no need of interpretation." Lewis Suth. Stat. Constr., section 367; Kelley v. Bowman, 68 W. Va. 49. But should we legislate by construction to give suit money to the wife in order that she may bring her suit here? Has not the legislature already done so? Look at section 1, chapter 138 of the Code. A poor person who makes affidavit that he is pecuniarily unable to pay fees or costs on counsel fees is allowed to sue or defend in a court without suit money. I am aware that the Virginia Supreme Court has held, per curiam, that this section does not apply to appellate proceedings in Tyler v. Garrison,120 Va. 697; but the statute does not confine the application of a poor person to relief to any particular court. The opinion is on the theory that the lower court had jurisdiction to entertain *Page 374 the petition for suit money for an appeal, in which theory I do not concur; but even on that theory, I would concur in the holding that the circuit court has discretion to allow or refuse the allowance asked for; for it may be that the evidence on which the dismissal of the case was based, was so clear and convincing that an attempt to appeal would be futile on the part of petitioner, and vexatious to the other party.