64 P. 885 | Or. | 1898
delivered the opinion.
This is a suit by the wife to secure a separate maintenance from the husband under the act to provide for the support of married women, approved February 25, 1889 (Laws, 1889, p. 92; Hill’s Ann. Laws, [ed. 1892] p. 1867). The plaintiff applied for an allowance pendente lite, and, after hearing upon affidavits pro and con, the court made and entered an order “that the said defendant pay to the plaintiff’s attorneys, for the use of the plaintiff, the sum of $60 for the support of the plaintiff during the pendency of this suit, and the further sum of $50 for attorney’s fees ; and that this order have the full force and effect of a decree for said sums of money.” From this order the defendant appeals, and the plaintiff moves to dismiss the appeal upon the ground that the order is not, in its nature, final or appealable.
Nor does section 3, in our opinion, invest the court with power to accord the incidental relief claimed. The power of the court to make allowances for the wife during the pendency of a suit for divorce is statutory, and may be exercised (1) to enable the wife to prosecute or defend the suit, as the case may be ; (2) for the care, custody, and maintenance of the minor children of the marriage : 1 Hill’s Ann. Laws, § 500. The contention of the respondent would require us to read this section into the act in question, but the language employed is not sufficiently broad or explicit to permit of such an interpretation. The meaning of the clause prescribing that “the practice in such cases shall conform as nearly as may be to the practice in divorce cases” is simply that the procedure shall be similar in so far as the court is empowered to act, and it was not intended thereby that any of the provisions of the statute pertaining to the dissolution of the marriage contract should be interpolated or read into the act for the wife’s separate maintenance. This construction is borne out in some measure by the case of Foss v. Foss, 2 Ill. App. 411. The act therein considered gave a like remedy to the one in question, but, instead of section 3, it contained the following clause, viz. : “And the court may grant al
Motion Overruled.
Application Denied.