Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-02-01
Supreme Court
IN THE SUPREME COURT. STATE
OF NORTH DAKOTA, OCTOBER,

IN THE SUPREME COURT, STATE
OF NORTH DAKOTA, OCTOBER,
1911, TERM.
Jane Bailey, Respondent. VS.. Samuel
D. Bailey, Appellant.
/. Under Section 1911 OF the Civil
Code providing that while an action
for divorce is p. nding. the court may.
in its discretion, require the husband
to pay as alimony any money necess-
airy to enable the :'fe to support her.
self or her children or to prosecute
or defend the action" the court has
power to order the payment of any
reasonable sum for such purposes
but such allowances should be made
only upon due notice to the husband,
giving him a reasonable opportunity
to resist the application therefor.
? The object of section 4O71 is to
enable the wife to properly present
her cause of action or defence to the
court, and II she has ample means Of
her own to enable her to do this 1t
would be an abuse of discretion to
require the hu band to make such
allowance.
8. Where the wife who is plaintiff,
is a resident of this state and the
husband is a resident OF Nebraska
an order to show cause why defen-
dant should not furnish the plaintiff
suit money and attorneys fees, which
order is made returnable two days
after the service thereof on defen-
dant's local attorney in this state,
Held, that a reasonable opportunity
was not afforded defendant to appear
and resist such application aud It
was an abuse of discretion to deny
defendants motion for a continuance
of the hearing under such order to,
show cause.
4. The order of the court requir.
ing defendant to pay to the plaintih
the sum of $4,000 suit money and
$1,000 as attorneys fees was erron-
eous as the court has no power to re-
quire the payment of such sums to
the attorney. Such allowances are
for the benefit of the wife to enable
her to prosecute or defend the action
and should be made payable to her.
(Syllabus by the court.)
Appeal from district court, Ramsey
county, Goss, special J.
From an order awarding suit money
and attorneys fees to be paid to the
plaintiff. defendant appeals.
Reversed.
', w, E. Cant and L. ]. Wehe, for
appellant.
p. J. McClory, for respondent.
Opinion by Fisk. J. Mr.. Justice
Goss, being disqualified, did not par:
ticipate.
Ole Ugland, plaintiff and respondent.
VS.. Charles l.. Kolb. ct al. defen-
dants, and Charles l.. Kolb, alone,
appellant.
1. Plaintiff had acquired two quar-
ter sections of land from the govern
ment. which land he contracted to
sell to one Kuchenbecker upon what
IL known as a contract for deed.
Kuchenbecker, assuming to act as
owner Of the land, though without
paying the full purchase price and re-
ceiving himself deed therefor, made
a similar contract to sell the said
land to Kolb for some $4,000 more
money than he was paying to Upland.
Kuchenbecker paid about one fifth OF
the purchase price and defaulted.
Kolb paid about the, same amount
upon his contract. After two years
Ugland brings this action to quiet
his title, proving that he had served
notice of cancellation upon Kuchen.
becker. Kolb defends the action and
shows that he had offered to Upland
all of the money. excepting $4,000
which he wishes to keep back to clear
the title, due upon Kuchenbecker's
contract. Ugland showed that at the
time of the offer the contract between
himself and Kuchenbecker had been
ASSIGNED to one Brennan as security
for a loan. and had never been re-
deemed. He also showed that the
objections to his title were frivolous. It
also appeared that Kuchenbecker had
made q deed of the premises to Kolb,
but said deed was made after the
attainment Of his contract to Bren-
nan, and had never been delivered