Devils Lake inter-ocean. (Devils Lake, N.D.) 1909-1915, 1912-02-02
SUP REM COUR'T' I.

iSSSAlSuS SuS suS1Suudnl5 2dIluStAIJOFuSyt
F: y. McClery the plaintiff, and in
which Attorney Wehe secured rever.
sal Of the decision Of the district court.
Afidavits 81 prejudice being filed
against Judge CoWan, in the lower
court, Judge Goss rendered the decis-
ion, which was reversed
Jane Bailey, respondent, vs.. Samuel
D. Bailey, appellant.
Under section 4071 of the civil
code providing that while an action
for divorce is pending. the court may.
in it's discretion, require the husband
to pay as alimony any money neces-
sary to enable the wife 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, civ.
ing him. reasonable opportunity to
resist the application therefor.
2. The object of section 4071 is
to enable the wife to p operly present
her cause of action or defense to the
court, and if she has ample means
Of her. own to enable her. to do this,
it would be an abuse of discretion to
require the husband to make such al
lowance.+ Il * "A Il:
8. Where the wife, who is plaintiff,
is resident of this state and the hus4
band is a resident of Nebraska an or
der to show cause why defendant
should not furnish the plaintiff suit
money and attorneys fees, which or
der is made returnable two days after
the service thereof on defendants
local attorney in this state, held, that
a reasonable opportunity was not af-
forded defendant to appear and resist
such application and it was an abuse
of discretion to deny defendants mo-
ton for continuance of the hearing
under such order to show cause. {.
4. The order of the court requiring
defendant to pay to the plaintiff the
sum of $3.50 suit money and 500 as
attorneys fees was erroneous as the
court has no power to require the pay
ment 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. 81 ~. =, i; y {.:>s5s =
(syllapus by the court, 81
Appeal from district court, Ramsey
county, Goss, special Judge. 57: ;5s: Fl
From an order awarding suit mon
ey and attorneys fees to be paid to
the plaintiff, defendant appeals.
Reversed. ~ -. 81. I 4
Opinion by Fisk, J. Mr.. Justice
Goss being disqualified, did not parti-
cipate. + n q @ss.ss
Ole Upland, plaintiff. and respond
emit, VS.. Charles L. Kolb, alone, appel
liant. ~. 5a5.,'. .s.-sss,:. ,,- -.,,"
L.. Plaintiff had acquired two quar-
ter sections of land from the govern
ment, which land he contracted to sell
to one Kuchenbecker upon what is
known as a contract for deed Kuch-
enhecker, though without paying the
full purchase price and receiving him
self a deed therefor, made similar
contract to sell the said land to Kolb
for some $3.50 more money that he was
paying Upland. Kuchenbecker paid
about one-ffth of the purchase price
and defaulted. Kolb paid about the
same amount upon his contract. After
Two years Ugland brings this action to-
&:uiet his title, proving that he had
served notice of cancellation upon
sssuchenb becker Kolb defends the ac-
zion and SHOWS that he had offered to
gland all of the money! excepting
il50 which he wished to keep back to
clear the title, due down to Kuchen-
becker's contract Upland showed that
1T the time OF the offer the contract
between himself and Kuchenbecker
mad been assigned to one Brennan as
security for a loan, and has never
been redeemed. He also showed that
the objections to his title were friyo-
.Jous. It also appeared that Kuchen-
'ecker had made a deed of the prem
Uses to Kolb, but said deed was made
after the assignment of his contract to
81 ennan, and had never been delivered
to Kolb, but was made at a time when
kolb expected to borrow enough mon
ey upon the land to pay Upland in full.
Held, that there was no mutually Of
contract between Upland and Kolb,
and as Kolb could not have been COM