[No. 10846.

Department One.

November 12, 1912.]

#### Leva Griffith, *Appellant,*v. Daniel Griffith, *Respondent.**1*

Divorce — Appeal—Power oe Appellate Court — Protection Pending Appeal. Tbe supreme court will not, pending appeal in a divorce case, restrain tbe husband from violence, in violation of an order restraining bim, since adequate remedy is provided by statute.

Divorce — Appeal—Jurisdiction—Temporary Alimony and Suit Money. Upon appeal by tbe wife from a judgment denying a divorce, tbe appellate court will, in aid of its appellate jurisdiction, award ber temporary alimony and suit money for an efficient preparation of ber case (Reversed on Rebearing).

Same — Allowance for Alimony — -Suit Money. A wife in necessitous condition will be awarded temporary alimony of $20 per week for the support of herself and children, with possession of tbe family home, and $150 suit money and attorney’s fees for prosecuting an appeal from a judgment denying a divorce, where there was evidence that tbe community owns property of tbe value of *57$30,000 or $40,000, which, the defendant admitted was of the value of $5,000, over and above all indebtedness (Reversed on Rehearing).

On Rehearing.

Divorce — Appeal—Jurisdiction—Temporary Alimony. Under the constitution, limiting the original jurisdiction of the supreme court to special writs and to all other writs necessary and proper to the complete exercise of its appellate jurisdiction, the supreme court has no jurisdiction, pending an appeal in a divorce ease, to award the wife temporary alimony, suit money and attorney’s fees for the prosecution of her appeal (Gose, J., dissenting).

Application filed in the supreme court October 31, 1912, for alimony, suit money and injunctive relief, pending an appeal in an action for divorce.

Granted in part.

*Frank H. Kelley,*for appellant.

*Rickabaugh & McElroy*and *Williamson, Williamson & Freeman,*for respondent.

1

Reported in 127 Pac. 585; 128 Pac. 636.

Gose, J.

This is an application for an order restraining the respondent from harassing the appellant, and for alimony, suit money, and attorney’s fees. The action is for divorce. The plaintiff was unsuccessful in the court below, and has appealed.

In the court below an order was entered *pendente lite,*giving the appellant possession of the family home at 424, South J street, in the city of Tacoma, giving her $20 per week for the support of herself and minor children, and restraining the respondent from harassing or interfering with them. Affidavits have been filed here on behalf of the appellant showing that the respondent has threatened her and the children with violence. This he denies.

The law affords her ample protection against threatened violence in courts of original jurisdiction. If her statements in this behalf are true, she should present her facts to the prosecuting attorney of her county or to some magistrate. It would seem farcical for this court to direct the issuance of an order restraining the respondent from committing a crim*58inal offense when a more adequate remedy is provided by statute. The application in this respect will be denied.

Touching the question of alimony, suit money, and attorney’s fees, the appellant’s affidavits show that the community owns property of the value of thirty to forty thousand dollars, and that she is in a necessitous condition. The respondent’s affidavit shows, that the value of the community property after deducting the indebtedness does not exceed $5,000; that the real estate is heavily incumbered; that a large amount of indebtedness will mature in about sixty days, and that he has no money with which to meet it.

The law gives the right of appeal in divorce cases, and the wife is entitled to be provided out of the community property with means to secure “an efficient preparation of her case” on appeal. If this is denied her by the trial court, this court may, in aid of its appellate jurisdiction, meet the situation. *Holcomb v. Holcomb,*49 Wash. 498, 95 Pac. 1091; *Sullivan v. Sullivan,*49 Wash. 508, 95 Pac. 1095; *Gallagher v. Gallagher,*65 Wash. 310, 118 Pac. 4; *Gust v. Gust,*69 Wash. 220, 124 Pac. 504. The fact that the wife prosecutes the appeal does not militate against this right. *Gust v. Gust, supra.*The property belongs to the community, and she is as much entitled to use it in aid of her rights in the divorce action as the husband. It is the duty of the courts, however, to conserve the property for the benefit of the community and its members respectively.

The order giving the appellant the right to occupy the family home at 424 South J street, in the city of Tacoma, and $20 per week alimony for the support of herself and minor children *pendente lite,*will be continued. She will also be allowed $75 suit money, and $75 attorney’s fees for the purpose of prosecuting the appeal. An order will be entered directing the respondent to pay $150 to the clerk of this court for the benefit of the appellant for these purposes, within thirty days after the filing of this opinion, and giving her the possession of the family home and $20 per week ali*59mony for the benefit of herself and minor children, *pendente lite.*In this and all other cases, in the absence of a controlling equity, such allowances will be charged to the wife in the division of the property in case a divorce is granted.

Crow, Parker, Chadwick, and Morris, JJ., concur.

On Rehearing.

*[En Banc.*December 21, 1912.]

Fullerton, J.

After the opinion of November 12, 1912, in this cause directing that the appellant be awarded alimony, suit money, and attorney’s fees, had been filed, a petition for rehearing was presented by the respondent in which the jurisdiction of the court to make the order was suggested. On consultation upon the petition, it was found that differences of opinion existed among the several members of the court as to the court’s jurisdiction, and the cause was set down for further argument at the present session. The question was reargued at the time appointed, and the court is now convinced that it was in error in making the order directed in its former opinion, and in error in making the orders in the cases of *Holcomb v. Holcomb,*49 Wash. 498, 95 Pac. 1091; *Sullivan v. Sullivan,*49 Wash. 508, 95 Pac. 1095; *Gallagher v. Gallagher,*65 Wash. 310, 118 Pac. 4; and in entertaining the petition in *Gust v. Gust,*69 Wash. 220, 124 Pac. 504. The reasons which lead us to this conclusion are clearly and fully stated in the dissenting opinion written by the present chief justice in the case of *Holcomb v. Holcomb, supra,*and we adopt the opinion as the opinion of the court in the present case. The order heretofore entered herein, directing alimony, suit money, and attorney’s fees to be granted is therefore revoked, and the application for the same denied.

Mount, C. J., Chadwick, Morris, Parker, Ellis, and Main, JJ., concur.

Gose, J.

(dissenting) — I adhere to the view expressed in the majority opinion in *Holcomb v. Holcomb, supra.*