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233 Miss. 222

Ladner v. Ladner

Mississippi Supreme Court

Decided April 14, 1958

Mississippi Supreme Court · decided 1958-04-14

<bold>1. Divorce — bill for divorce never taken as confessed.</bold> A bill for a divorce is never taken as confessed whether answered or not. <bold>2. Divorce — habitual cruel and inhuman treatment — husband</bold> <bold>failed to sustain allegations of bill of complaint.</bold> In action by husband for divorce, husband failed to sustain allegations as to habitual cruel and inhuman treatment. <bold>3. Divorce — homestead — husband not entitled to partition and</bold> <bold>sale of — wife entitled to occupy homestead as her home.</bold> Where husband absented himself from homestesad without justifiable cause and deserted wife, husband was not entitled to have homestead sold or to a partition of proceeds, as long as wife desired to occupy homestead as her home while she was his wife. <bold>4. Divorce — joint savings account — husband failed to establish</bold> <bold>any interest in.</bold> Husband failed to show that one-half of funds in joint savings account belonged to him or what portion belonged to him, even assuming that he had contributed part of funds that were deposited in joint savings account. Headnotes as approved by McGehee, C.J. <center> ON MOTION FOR COUNSEL FEES PENDENTE LITE</center> January 6, 1958 99 So.2d 599 <bold>5. Divorce — wife, who had not asked for and obtained decree for</bold> <bold>counsel fees in Trial Court not entitled to counsel fees</bold> <bold>pendente lite for resisting appeal.</bold> Where husband brought suit for divorce, final decree sustained wife's motion to dismiss bill, and husband appealed, wife, who had not asked for or obtained decree for counsel fees in Trial Court, was not entitled to counsel fees pendente lite for resisting the appeal. Headnote as approved by Ethridge, J.

Cited by 4 later decisions — most recently October 1992

4 state decisions

Relies on Reese v. Mayo

Good law ✅— No negative treatment on recordhow we know

Decided 1958-04-14

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¶1

ON MOTION FOR COUNSEL FEES PENDENTE LITE

¶2Appellant brought a suit for divorce from his wife, the appellee, in the Chancery Court of Forrest County. The final decree sustained appellee's motion to exclude the testimony and dismiss the bill. In the trial court appellee did not ask for or obtain a decree for counsel fees, and the decree made no mention thereof.

¶3This case on appeal will not be docketed for submission to this Court for several months. Appellee, Mrs. Alma S. Ladner, has filed a motion for an allowance of counsel fees for resisting this appeal. (Hn 5) The pertinent rule is summarized in Bunkley and Morse, Amis On Divorce and Separation in Mississippi (1957), Sec. 5.09, page 176: ". . . pending an appeal of the case the Supreme Court will not grant counsel fees pendente lite where the lower court declined to allow counsel fees. Such motion to the Supreme Court will be overruled without prejudice to the claim for counsel fees when the cause is heard on the merits." *228

¶4In Castleberry v. Castleberry, 56 So.2d 77 (Miss. 1952), where the lower court had declined to allow counsel fees, it was stated that there was therefore no authority "whereby we may fix and allow such fees pendente lite". The same rule should apply where such fees are not requested in the trial court. Accordingly, this motion is overruled, without prejudice to a claim for counsel fees when the cause is heard on the merits.

¶5Motion for counsel fees pendente lite overruled.

¶6McGehee, C.J., and Kyle, Arrington and Gillespie, JJ., concur.

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