[14 P. 394] Appeal from an order of the Superior Court of Mendocino County directing the payment of costs, alimony, and counsel fees in an action of divorce.
Barclay Henley, and E. D. Wheeler, for Appellant.
H. E. Highton, H. C. McPike, and J. A. Cooper, for Respondent.
JUDGES: In Bank. McFarland, J. McKinstry, J., Searls, C. J., Paterson, J., and Temple, J., concurred.
[14 P. 395] This is an action of divorce, brought by the husband against the wife. By her answer the wife denies the averments of the complaint, which state facts constituting a cause for divorce; and by a cross-complaint she avers causes of divorce against the husband. The action is still pending in the court below; but during its progress the court made an order directing the payment by said plaintiff to said defendant of certain sums aggregating $ 3,850, as and for costs and expenses, alimony, and counsel fees, and from this order the plaintiff appeals. The only point made by appellant is, that the allowance was excessive, and an abuse of discretion.
The evidence upon which the order was made was conflicting as to appellant's financial ability, and as to other matters which it was the duty of the court below to consider. Of course we could not be expected, under any circumstances, to interfere with the judgment of a nisi prius judge in such a matter, unless it appeared affirmatively and clearly that there had been a gross abuse of discretion. No such abuse appears here, and therefore we will not stop to determine whether or not our estimates of counsel fees, costs, expenses, etc., would correspond with those of the learned judge of the court below.
This view disposes of the appeal, and therefore it is not necessary to consider the other point made by counsel for respondent, viz., that an appeal does not lie from an order of this kind in a divorce case where the marriage and the relation of husband and wife are not denied.