O'Brien v. O'Brien
| Decision Date | 14 April 1886 |
| Citation | 27 N.W. 640,19 Neb. 584 |
| Parties | SAMUEL O'BRIEN, PLAINTIFF IN ERROR, v. NANCY O'BRIEN, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Dodge county. Tried below before POST, J.
Order of the district court affirmed, and cause remanded.
N. H Bell, for plaintiff in error.
C Hollenbeck, for defendant in error.
In April, 1883, defendant in error obtained a decree of divorce from plaintiff in error. In that action she was awarded both temporary and permanent alimony and the custody of the minor children of the parties. In May, 1884, plaintiff filed his petition in the same court, alleging the foregoing facts, and that defendant had become an unfit person to have the custody of the children, and asking a modification of the decree to the extent that, owing to his fitness to take charge of the children, and his ability to provide for them, he be given their custody. It is unnecessary to set out here the allegations of the petition. It is sufficient to say that enough is stated, if true, to require the modification.
Defendant answered, denying the charges made against her, and alleged, substantially, that plaintiff was a man of bad morals and habits, and not a fit person to have the custody of the children. She further alleged that plaintiff, by taking advantage of her destitute condition and by fraudulent representations, induced her to consent to her former allowance of alimony, which was inadequate and much too small; and by his conduct since the divorce was granted he had involved her in litigation until her means were exhausted, and she was unable, for want of such means, to take the necessary testimony to refute the charges made against her and her character, and prosecute her defense. She asked for temporary alimony, or suit money, to enable her to do so. The district court made an order requiring plaintiff to pay to her the sum of $ 50, "as temporary allowance for suit money, and to enable her to properly defend" the action. For the purpose of a review of this order, plaintiff brings error.
The first question requiring our attention is presented by defendant by a motion to dismiss the proceedings in error, for the reason that the order of the district court was not such a final order as can be reviewed by proceedings in error.
Section 581 of the civil 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."
Applying the provisions of this section to the case at bar, it is clear that no authority for review is found in the first clause of the section, as the order complained of neither determined the action nor prevented a judgment. We next inquire whether this is a special proceeding, and whether the order complained of is one affecting a substantial right. As this is not an original action, but a proceeding specially provided by sections 15 and 16 of chapter 25 of the Compiled Statutes of 1885, it must be apparent that it falls directly within the provisions of section 16. These sections are as follows:
This action must therefore be held as a special proceeding, and the order one affecting a substantial right therein, and is open to review by this court. It differs from Aspinwall v. Aspinwall, 18 Neb....
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