I dissent, and think that for the reasons given in the opinion in Department the order appealed from was there properly affirmed, and should be adhered to. It seems to he admitted that in a divorce suit, although the marriage be denied, still an allowance for alimony .to the wife may be rightfully made before the determination of the issue of marriage at the final hearing of the case. But that *401would be of little advantage to the plaintiff if at the preliminary hearing “the marriage must be proved” in the sense in which that proposition is meant in the opinion of the majority of the court. In the case at bar, the issue of marriage or no marriage is the main issue in the case, and according to the majority opinion she cannot be allowed any aid for the purpose of procuring evidence on that issue unless, without such aid, she had already proved it; although she may have no means at all, she must still rely entirely upon herself in obtaining evidence and procuring counsel in support of her side of that issue. Whether or not she has made sufficient proof at the preliminary hearing to warrant the court in allowing her aid in preparing herself for the final adjudication of that issue is a question in the' first instance for the exercise of the .discretion of the trial court; and in passing upon the conclusion of the trial court upon that point this court is estopped, in my opinion, from disturbing that conclusion if there be a fair and material conflict of evidence upon the issue. In the case at bar, there is no doubt that the respondent produced evidence tending strongly to establish the fact that there was a marriage. It is true that appellant also produced evidence on the other side of that issue, but I do' not think that, under the well-established rule touching conflicting evidence, we are warranted in disturbing the conclusion , of the court below. Eespondent was clearly entitled, in my opinion, upon the showing made by her, to have aid from the appellant in procuring evidence to be used upon the final determination of that issue.
Appellant seems greatly impressed with, the danger of some well-to-do husband being compelled to contribute to the prosecution of a suit brought by some woman who falsely swears that she is his wife; but no fear seems to be entertained that a husband may prevent an injured wife from obtaining means to prosecute a just suit by simply averring that he is not her legal husband.
Appellant seeks to emphasize the fact that the plaintiff is an Indian, but it is entirely immaterial what race she belongs to. Appellant selected and enjoyed her as his chosen companion through the youth and prime of her womanhood. When he *402discarded her it was evidently not because she was an Indian, but because she was then an old Indian.