120 P. 660 | Okla. | 1912
Mrs. Jessie Blackaby instituted suit for divorce in the lower court against the relator, W. H. Blackaby, her husband. Upon her application the trial judge made an order for alimony and expenses for prosecution of the suit, including attorney's fees, pendente lite. Said order being served upon the relator, he moved that the same be modified. The motion was overruled.
It is essential to determine whether an order allowing alimony and attorney's fees pendente lite is, prior to the final determination of the divorce suit in the trial court, subject to be reviewed by this court in a proceeding in error. In McKennon v. McKennon,
"The Supreme Court may reverse, vacate or modify a judgment of the district or county court, for errors appearing on the record, and in the reversal of such judgment or order, may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof. The Supreme Court may also reverse, vacate or modify any of the following orders of the district court, or a judge thereof: First, a final order; second, an order that grants or refuses continuances; discharges, vacates or modifies a provisional remedy; or grants, refuses, vacates, or modifies an injunction; grants or refuses a new trial; or confirms or refuses to confirm the report of a referee; or sustains or overrules a demurrer; third, an order that involves the merits of an action, or some part thereof." (Section 6067.)
"An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment is a final order, which may be vacated, modified or reversed, as provided in this article." (Section 6068.)
In Earls v. Earls, supra, it is said:
"Section 542 of the Code prescribes what rulings and decisions of the district court may be reviewed in this court. The only clauses that can be supposed to have any application to this question *189 are the first and third, which authorize this court to review a 'final order,' and also 'an order that involves the merits of an action, or some part thereof.' The order for temporary alimony is not a final order within the definition of such order given in section 543. Neither is it an order involving the merits of the action or any part of it. It is simply an order preparatory to the trial, making provision for the trial. Its force is spent before any trial is had or any decision reached upon the merits of the case."
In Call v. Call,
"Obviously, the object of this provision is to provide for the immediate wants of the wife. The allowance of exceptions to such an order, and the delay that would be thereby occasioned, would in many cases leave the wife to starve, or force her to become a public charge, or to accept support at the hand of charity."
In Jeter v. Jeter,
"So much of the chancellor's decree as pertains to the wife's support pending the litigation, and her expenses of suit, is not, in my opinion, before us for revision. The order of the chancellor upon these subjects is clearly not a final decree (Ex parte King,
In Pearson v. Pearson, Peck (7 Tenn.) 27, it is said:
"* * * Can the defendant below appeal from the order for the payment of the alimony then due? Answer, 'No'; for at the end of every six months there might be an appeal, and the plaintiff below might starve in the meantime. After the decree, the defendant below is placed under the discretion of the court, especially as he has submitted to the principal decree. The act of the Legislature intended to subject him to instantaneous compensation both to keep him in order and for the effectual protection and preservation of the feme, which object could not otherwise be attained."
The same rule applies, also, as to attorney's fees. The wife without funds may not be able to prosecute a proceeding for alimony and divorce without the allowance of a reasonable fee, and if her husband, who is charged with being derelict in his marital duties, be permitted to stay the proceeding and tie it up by a supersedeas and litigate with her not only the merits of the divorce case but also the question as to the allowance of necessary funds for attorney's fees, she would be at the mercy of her husband who was faithless in the duties imposed upon him by virtue of his marriage vows. Judge Irwin inMcKennon v. McKennon, supra, seems to be afraid that the courts may abuse this power and imprison husbands for contempt on account of the failure to pay alimony, or cause their property to be seized under the law and sold to make such payment. The presumption is that the chancellor will exercise that power wisely and justly, and for the protection of the dependent wife the statute seems not to contemplate an appeal from such an order pending the final determination of the cause in the district court. Judge Irwin, without referring to or considering the statute providing what character of orders are appealable, interpolates such provision into the statute. His decision is contrary to the governing authority and contrary to the best reason, and for that reason we overrule same, *191
In Aspinwall v. Aspinwall,
"The action of the district court appealed from in the case at bar is clearly not the final or main judgment or decree in the case. The principal thing sought and litigated for in the action is a divorce, and no judgment or decree in the case can be considered final unless it either awards or denies such divorce. But is it a final order? If the statute above quoted stood alone, it might be somewhat difficult to answer this question. Section 581 of the Code provides that 'an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order which may be vacated, modified or reversed, as provided in this title.' This definition of a final order was made in view of proceedings in error. But, it being the only statutory definition applicable thereto, it must be held also to control as well when used in reference to proceedings by appeal."
See, also, Wyatt v. Wyatt, 2 Idaho (Hasb.) 236, 10 P. 228;Malony v. Malony, 9 Rob. (La.) 116. In Michigan an order allowing temporary alimony is interlocutory and not appealable (Lapham v. Lapham,
Quaere: Is such an order committing a party for contempt for refusing to comply with the court's order for the payment of alimony and the expense of litigation pendente lite appealable in this state? See Smythe v. Smythe,
This not being an appealable order, it necessarily follows that the prayer for a writ of mandamus requiring the settling and signing of a case-made will be denied and the alternative writ discharged.
All the Justices concur. *192