Cirtin v. Cirtin

• Citation: 199 Ind. 737,164 N.E. 493
• Decision Date: 06 April 1928
• Docket Number: No. 25476.,25476.
• Parties: CIRTIN v. CIRTIN.
• Court: Supreme Court of Indiana

199 Ind. 737
164 N.E. 493

CIRTIN
v.
CIRTIN.

No. 25476.

Supreme Court of Indiana.

April 6, 1928.

Appeal from Superior Court No. 2, Vigo County.

Action for divorce by Harvey J. Cirtin against Gertrude Cirtin, who filed a cross-complaint. From an order that plaintiff pay a certain sum for the use of defendant and her attorneys, in defending against plaintiff's appeal from judgment for defendant on her cross-complaint, plaintiff appeals. Cause ordered transferred to Appellate Court.

[164 N.E. 494]

See, also, 159 N. E. 927;161 N. E. 709.

E. L. Swadener, of Terre Haute, for appellant.

B. F. Small, of Terre Haute, for appellee.

PER CURIAM.

In the lower court, the appellee was granted a divorce from the appellant, on her cross-complaint, and was given alimony in the sum of $1,500. Appellant's motion for a new trial was overruled, and he then appealed from the judgment rendered against him to the Appellate Court. After the appeal was perfected, on motion of the appellee, in the trial court, the cause was redocketed, and she filed a verified petition for allowance for attorney's fees and expenses to defend the appeal taken. This petition was submitted to the court, and it was considered and adjudged that the plaintiff pay into court the sum of $400 for defendant's attorneys for defending the appeal and expenses of the appeal. From that order or judgment, the appellant has appealed. The appellee has filed a motion to dismiss this appeal, claiming that the order appealed from was an interlocutory order, and that the transcript and assignment of errors were not filed within a period of 30 days, and that a bond was not filed, all as required by section 713, Burns 1926. If the order or judgment appealed from was interlocutory, the appeal should be dismissed, and, if it was not interlocutory, the jurisdiction of the appeal is in the Appellate Court.

[1][2] An interlocutory judgment, order, or decree is one made before the final hearing on the merits. 2 Watson's Rev. of Works' Practice § 2244; 1 Hogate, Pleading and Practice § 739; 1 Freeman on Judgments (5th Ed.) § 38. An order of the court, made in the progress of the cause, requiring something to be done or observed, but, not determining the controversy, is an interlocutory order, and is sometimes called an interlocutory judgment. Pfeiffer v. Crane (1882) 89 Ind. 485, 487;Western Union Tel. Co. v. Locke (1886) 107 Ind. 9, 11, 7 N. E. 579. The words “pending a petition for divorce,” as used in the statute (Burns' Ann. St. 1926...