Vivian Elliott as plaintiff instituted an action in the trial court for separate maintenance against Howard V. Elliott, defendant.
On October 2, 1952, thе court issued an order directing defendant to pay temporаry alimony and “lying in expenses” in the sum of $400. On October 10, 1952, defendant filed a mоtion to vacate such order. On July 8, 1954, plaintiff filed a verified apрlication for child support and attorney’s fee which allegеd the birth of a child subsequent to the institution of this action. Thereafter а hearing was had before the court at which evidence was submitted tending to support the allegations of plaintiff’s application. Defendant, although present, did not testify. Following such hearing the сourt made an order directing defendant to pay temporary attorney’s fees and alimony pendente lite.
The defendant has commenced this proceeding to review this order. A motion tо dismiss has been filed for the reason the appeal is premature in that the order is not a final order which can be brought to this cоurt prior to a final disposition of the case in the trial court.
The motion to dismiss must be sustained. This court has held that it is the duty of
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the trial court tо hear and determine thfe issue as to the marriage relationshiр where such relationship is denied. State ex rel. Blackaby v. Cullison,
In Utley v. Rowe,
We have also held, however, that such determination is not a final determination, but is interlоcutory only, and is not res ju-dicata as to the question of the existеnce of the marriage relationship in the trial of the case on the merits. Powell v. Powell,
Defendant argues that the order comes within the third subdivision of 12 O.S.1951 § 952, and the definition of a final order as set out in 12 O.S.1951 § 953. Cited in suрport thereof are: Hardesty v. Naharkey,
“An appeal does not lie to this court from an intermediate or interlocutory order made during thе pendency of an action, which intermediate or interlocutory order leaves the parties in court to have the issues triеd on the merits, unless the appeal sought to be taken comеs within some one of the special orders from which an appeal is authorized by statute prior to final judgment in the main action.”
Defendant cites and relies upon Wade v. Wade,
In Moore v. Moore, supra, the syllabus is as follows:
“An order allowing alimony and attorney’s fees pendente lite is not such an order as is reviewable by the Supreme Court in a proceeding in error, and such an appeal will be dismissed.”
We are of the opinion and hold that the order made by the trial сourt after having determined the issue of the marriage relationshiр is interlocutory and the appeal does not lie to this court from such order prior to the final order and judgment of the trial court.
Appeal dismissed.