Opinion
Opinion Filed October 6, 1939
A Writ of Certiorari to the Circuit Court for Dade County, Arthur Gomez, Judge.
Loftin, Calkins Anderson, for Relator;
H.H. Taylor, Henry H. Taylor, Jr., Waller Meginniss, C.L. Waller and Chas. H. Spitz, for Respondent.
Robert Edgar McAllister brought suit for divorce against Amelia Elizabeth McAllister. The defendant petitioned the Court for an allowance of attorneys' fees and suit money as authorized by Section 4986. Compiled General Laws of 1927. Before the latter petition was ruled on, the chancellor referred the cause to a special master to take testimony on the merits.
Petition for certiorari was filed in this Court, the usual notice was given, and an order was granted staying all proceedings in the court below until the petition for certiorari is disposed of. Should the petition for suit money and attorneys' fees have been adjudicated before taking testimony on the merits, is the question presented. The sufficiency of the bill is also challenged.
Under Section 4986, Compiled General Laws of 1927, a petitioner is entitled to counsel fees and suit money if her petition therefor shows that she lacks sufficient means to support herself during the litigation and with which to employ counsel. It must be further shown that the husband has means to supply this necessity. The chancellor may exercise his discretion about determining these matters but they should be settled before the defendant is required to enter and begin her defense. We find in the record an order of reference to take testimony on this point. We will not assume that the chancellor will not have this evidence taken and dispose of the petition for counsel's fees and suit money in due course. The bill of complaint is not amenable to the assault made on it.
It is therefore ordered, adjudged, and decreed, that the petition for certiorari be and is hereby denied.
It is so ordered.
TERRELL, C. J., WHITFIELD, BUFORD, CHAPMAN and THOMAS, J. J., concur.
Justice BROWN not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.