Clay v. Clay
108 P. 119
Or.
1910
Check Treatment

Lead Opinion

Opinion by

Mr. Chief Justice Moore.

1. This is а motion to dismiss an appeal. The facts are that this suit was begun by the husband to have his marriage contrаct dissolved. The defendant answered the complaint, and interposed a motion, supplemented by affidavits, for an allowance of money to enable her properly to make a defense. Based on her application, the judge, pursuant to the provisions of the statute (Section 512, B. & C. Comр.), ordered the plaintiff to pay the sum of $500 and he appeals.

It is argued by defendant’s counsel that the order complained of is not final, and therefore unappealable. An order affecting a substantial right, ‍‌‌​​‌​​​​​​‌​‌​​​​‌‌‌​‌‌​‌‌‌‌‌‌​​​​‌​​‌​‌​​‌​‌‌‌‍and which in effect determines the suit, so as to prevent a decree therein, is final, and may be reviewed on appeal. Section 547, B. & C Comp. So far as disclosed by the transcript, no decree granting or denying the divorce has been rendered. The order herein is not void, and, having been made prior to any final decree, it is merely interlocutory, and for that reason no appeal lies. Sterling v. Sterling, 43 Or. 200, 204 (72 Pac. 741); Kesler v. Nice, 54 Or. 585 (104 Pac. 2). The plaintiff is not remediless, however; for, when the cause is finally determined, and intermediate order affecting a substantiаl, right may be reviewed on appeal. *540Van Voorhies v. Taylor, 24 Or. 247 (33 Pac. 380); Farmers’ Bank v. Key, 33 Or. 443 (54 Pac. 206).

It follows that the appeal should be dismissed, ‍‌‌​​‌​​​​​​‌​‌​​​​‌‌‌​‌‌​‌‌‌‌‌‌​​​​‌​​‌​‌​​‌​‌‌‌‍and it is so ordered. Dismissed.





Rehearing

Decided June 14, 1910.

On Petition for Rehearing.

[109 Pao. 129.]

2. At the time the opinion was written, appellant’s brief upon the motion to dismiss was not before us. He nоw moves for a rehearing upon that ground, and we have considered the motion anew. The question involved had not been passed upon before by this court, and we find that the courts of several states have held that such an order is final, or affects a substantial right, and therefore is appealable. Sharon v. Sharon, 67 Cal. 185, 195 (7 Pac. 456, 635: 8 Pac. 709), is a leading case so holding, but by a divided court, the conclusion being based largely upon the language of the constitution granting appeals in all “cases in equity,” and holding that the appellate court hаs jurisdiction of all proceedings taken by the superior court in equity. The same is held in Hecht v. Hecht, 28 Ark. 92, but the constitution in that stаte confers upon the supreme court ‍‌‌​​‌​​​​​​‌​‌​​​​‌‌‌​‌‌​‌‌‌‌‌‌​​​​‌​​‌​‌​​‌​‌‌‌‍general supervision over inferior courts. The same is hеld in Locknane v. Locknane, 78 Ky. 468; Golding v. Golding, 74 Mo. 123; Blake v. Blake, 80 Ill. 523. 1 Ency. Pl. & Pr. 446, states it to be the general rule that such an order is appealable, although in some jurisdictions it is held not final, but only interlocutory, and therefore not appealable. On the contrary, the following сases hold that such an order is not a final order and is not appeal-able within the constitution or stаtute defining the jurisdiction of the supreme court. In some cases it is held that such an order is entirely within the discretion of the trial court, and not subject to review, viz.: Wyatt v. Wyatt, 2 *541Hasb. (Idaho) 236 (10 Pac. 228); Malony v. Malony, 9 Rob. (La.) 116; Chappell v. Chappell, 82 Md. 647 (33 Atl. 650); Moncrief v. Moncrief, 10 Abb. Prac. (N. Y.) 315; Aspinwall v. Aspinwall, 18 Neb. 463 (25 N. W. 623); Earls v. Earls, 26 Kan, 178; Call v. Call, 65 Me. 407; Lapham v. Lapham, 40 Mich. 527, 528; Earp v. Earp, 54 N. C. 120; Pearson v. Pearson, Peck (Tenn.) 28.

In Ross v. Ross, 47 Mich. 185 (10 N. W. 193), it is said that, as there is no right of appeal in such a сase, defendant may appeal from an order of imprisonment for contempt for disobediеnce of the order. The editor of the Central Law Journal (volume 21, p. 82) questions the correctness оf the decision in Sharon v. Sharon, 67 Cal. 185, 195 (7 Pac. 456, 635: 8 Pac. 709), to the effect that an order pendente lite in a divorce proceeding is a final judgment within the meaning of a statute granting appеals. 14 Cyc. 802, states that the jurisdiction of appellate courts in ‍‌‌​​‌​​​​​​‌​‌​​​​‌‌‌​‌‌​‌‌‌‌‌‌​​​​‌​​‌​‌​​‌​‌‌‌‍cases of the allowance оf alimony is controlled largely by statute, but that, under statutes in some states, orders for temporary alimony аnd attorney fees pendente lite are not appealable before the final determination of the suit. Thus it appears that the authorities are in irreconcilable conflict upon this question. The conflict cannot all be attributed to the difference in the statutes. By our constitution (Article VII, Section 6) “the Supreme Court shall have jurisdiction only to revise the final decisions of the circuit courts.” It is held in Shirley v. Birch, 16 Or. 1, 4 (18 Pac. 344, 345), that “finality must be put to the suit by the circuit court before an attempt can properly be made to have the decisiоn therein revised here.” The right of appeal is statutory, and cannot be extended to cases not falling within the terms of the statute. State v. Security Savings Co., 28 Or. 410, 417 (43 Pac. 162); School District v. Irwin, 34 Or. 431, 436 (56 Pac. 413); Kadderly v. Portland, 44 Or. 118, 156 (74 Pac. 710: 75 Pac. 222.) The constitution provides for appeal only *542from the final decision in the case. Section 547, B. & C. Comp., declares that certain orders shall be deemed judgments or decrees for the purpose of appeal, and only includes one class of orders made рrior to final judgment, viz.: “An order affecting a substantial right, and which ‍‌‌​​‌​​​​​​‌​‌​​​​‌‌‌​‌‌​‌‌‌‌‌‌​​​​‌​​‌​‌​​‌​‌‌‌‍in effect determines the action or suit so as to prevent a judgment or decree therein.” Therefore an interlocutory order for suit money in a divоrce suit is not within that provision, and appeal therefrom is not provided for. Kadderly v. Portland, 44 Or. 118, 156 (74 Pac. 710: 75 Pac. 222); Sears v. Dunbar, 50 Or. 36 (91 Pac. 145); Giant Powder Co. v. Oregon Western Ry. Co., 54 Or. 325 (101 Pac. 209: 103 Pac. 501.)

3. The argument advanced in favor of a right of appeal in such cases, to the effect that the order of the trial court may work a great hardship upon the party against whom it is made, if appeal is not allowed, has but littlе merit, for there is a right of appeal in no case except as provided by statute. The constitutional guaranty that “every man shall have remedy by due course of law for injury done him in person, proрerty or reputation” is fulfilled by the adjudication of the circuit court. School District v. Irwin, 34 Or. 431 (56 Pac. 413.) However, every intermediate оrder made by the trial court affecting a substantial right may be reviewed upon appeal from the finаl decree, and the court may direct complete restitution of all property and rights lost thereby. Section 557, B. & C. Comp. Van Voorhies v. Taylor, 24 Or. 247 (33 Pac. 380); Oregon v. PoHland General Electric Co., 52 Or. 502, 513 (95 Pac. 722: 98 Pac. 160.) And, if the review in that manner is not adequate or is ineffectual, relief must be sought at the hands of the legislature.

The motion is denied.

Dismissed: Rehearing Denied.