State ex rel. v. Calhoun et al. not possessed by us either by virtue of our original or appellate jurisdiction." Thus the whole burden of supporting the rule that the circuit court is without jurisdiction in the matter before us ultimately rests upon the authority of the Lewis case, supra, written as it was under the peculiar circumstances above outlined. And the rule is stated therein without any discussion of the question in hand and without the citation of a single authority. The rule in the Lewis case has been followed in the Kansas City Court of Appeals in a recent opinion consisting of a single paragraph. [See Hartwig v. Hartwig, (Mo. App.), 142 S. W. 800.] Our view that the circuit court is the only court that can make an order for alimony pendente lite and suit money pending an appeal, and that the circuit court has jurisdiction to make such an order whether the case be pending in the circuit or appellant court (State ex rel. Dawson v. St. Louis Court of Appeals, 99 Mo. 216; State v. Rombauer, 12 S. W. 661), is amply sustained by the weight of authority in other jurisdictions. Section 1769 of the New York Code of Civil Procedure provides: "Where an action" for divorce or for a separation. "is brought the court may, in its discretion, during the pendency thereof, from time to time, make and modify an order or orders, requiring the husband to pay any sum or sums of money necessary to enable the wife to carry on or defend the action, or to provide suitably for the education and maintenance of the children of the marriage, or for the support of the wife, having regard to the circumstances of the respective parties. (Italics ours). In the case of McBride v. McBride, 119 N. Y. 519, a case on all fours with the one before us, where the wife had sued for divorce and had received judgment awarding her alimony and the costs. The defendant appealed and procured a stay. Thereafter the plaintiff 4 State ex rel. v. Calhoun et al. filed her motion for an allowance pendente lite and for suit money pending the appeal. The court held: “... in this case although a judgment, final for the purposes of an appeal, is entered, the action is still pending. The jurisdiction over the parties remains through the further steps regularly taken and the action is in no sense or respect ended. By the terms of section 1769 of the Code, the allowance may be made ‘from time to time,' 'during the pendency' of the action, and is described 'as necessary to enable the wife to carry on or defend the action.' That is one of the purposes to be subserved, and the need is quite as pressing and obvious after the judgment and pending the appeal as before. It could not have been contemplated that before judgment the wife should be aided in maintaining her rights but after judgment in her favor, should be left to starve during the pendency of an appeal and should be disarmed by her very success from defending the judgment in her favor. "The suggestion that by granting the motion the defendant's stay or proceeding will be violated and impaired, and that if the judgment is affirmed he may, in effect, be compelled to pay the same amount twice over, have these answers, that the allowance sought is temporary and may be much less than the permanent alimony which has been stayed, and the court in the exercise of its discretion may and should require as a condition of the allowance, that the plaintiff stipulate that the sums allowed shall, in case of an affirmance of the judgment, be applied by her as payment pro tanto thereon." The same question was before the Supreme Court of Washington in the case of Lewis v. Lewis, 145 Pac. 980, (1915) in the course of the opinion it is said: "The principal question in the case is whether in a divorce action, after an appeal has been taken from the judgment of the superior court, that court has the power or jurisdiction to allow the wife attorney's fees, suit money and alimony pending the appeal. State ex rel. v. Calhoun et al. "Lem and Bal Code, section 988, provides: 66 'Pending the action for divorce the court or judge thereof may make such orders relative to the expenses of such action as will insure to the wife an efficient preparation of her case and a fair and impartial trial thereof. "The order complained of here was entered after the appeal had been perfected. The allowance or disallowance of suit money, attorney's fees or alimony pending the appeal is not a part of the original judgment appealed from, neither is it a matter embraced therein. The wife could not in fact make the application until after the appeal had been taken because she could not have known that the husband intended to appeal from the judgment dismissing the action until the notice of appeal was served. We think under the sections of the code above referred to, that the superior court retained jurisdiction and power after the appeal for the purpose of determining the question of suit money, attorney's fees, or alimony pending the appeal. "Our attention has not been called to the decision of any court holding that the trial court does not have jurisdiction after appeal has been perfected in a divorce action to make an allowance for suit money, attorney's fees or alimony pending the appeal, where the reviewing court is without jurisdiction, as in this State, to determine such matters. If there are such decisions, they have not been cited, nor has our investigation produced any." In ex parte Lohmuller, 103 Tex. 474, 129 S. W. 834, the court said: "The statute concerning divorces empowers the judge either in term time or vacation to allow a wife who has not sufficient income for her maintenance during the pendency of the suit for divorce, a sum for her support, until a final decree shall be made in the case. [Rev. Stat. Ark., 2986.] This is a power incidental to the jurisdiction over the suit for divorce in the exercise State ex rel. v. Calhoun et al. of which it becomes the duty of the court to see to the proper support and maintenance of the wife, until it can be determined in the course of the proceedings whether or not she is to remain a wife. The full accomplishment of the purposes for which the power is granted requires that it last as long as the occasion for its exercise shall last (that is, during the pendency of the suit); and hence the final decree (that is, to put an end to the power) is that made in the case (not necessarily that made by the district judge or the district court). The decree of the trial court granting or denying the divorce may be the final decree of that court, but is not the final decree made in the case when an appeal is taken to another tribunal. So long as the appeal is pending the suit is pending, and the occasion specified in the statute for the allowance of alimony continues and it does not end until that decree is pronounced, which puts an end to the case. The nature of the power is such as to make it incompatible with the notion that jurisdiction can no longer be exercised after the district court has rendered a judgment for divorce and has adjourned although an appeal has been taken. The facts remain that the case is still pending, that no final decree has been made on it, and that the wife is still in need of the provisions as fully as she was before the judgment. In Reilly v. Reilly, 60 Cal. 624, the same question was before the court and it ruled that: "The power over this matter is vested in the superior court even pending an appeal. The appeal does not take away the jurisdiction as the matter is not affected by the judgment appealed from." In the case of Rohrbach v. Rohrbach, 23 Atl. 610, (Maryland) the court held: "The wife could not in fact make application for counsel fees and expenses incident to the appeal until after the appeal had been taken, because she could not have known in this case that the husband intended to appeal from the decree of the court below dismissing his State ex rel. v. Calhoun et al. bill. And, although the appeal was taken, the court still had jurisdiction of the parties, and, having jurisdiction, it had the power to determine the question as to the right of the wife to an allowance for counsel fees and costs." Section 2742, Revised Statutes, Idaho, provides that: "While an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children or to prosecute or defend the action." The Supreme Court of Idaho, with reference to said section, in the case of Roby v. Roby, 9 Idaho, says: "We think the court referred to in section 2472 is the district court, in which such actions are originally commenced, and that it is the intention of our statute to give to the trial court jurisdiction to grant alimony and suit money so long as the action is pending whether in the trial court or upon appeal. The trial judge is in a better position than this court to know the amount of money necessary for the payment of costs and disbursements in the prosecution of an appeal and the ability of the husband to meet such requirements." In light of what we have said herein we are of the opinion and so hold that the circuit court, in this action for divorce, has jurisdiction to hear and determine plaintiff's motion for alimony pendente lite and suit money pending appeal though said motion was filed by plaintiff in the said trial court after an appeal had been taken by the defendant in the cause, from the judgment. granting plaintiff a divorce, but during the same term at which the appeal had been allowed. It follows that our preliminary rule in prohibition heretofore issued should be and the same is hereby quashed. However, inasmuch as the conclusion we have herein arrived at is contrary to the decisions of the Kansas City Court of Appeals in Lewis v. Lewis, 20 Mo. App. 564, and Hartwig v. Hartwig, 142 S. W. 800, we |