Seelig v. Seelig
| Decision Date | 03 April 1939 |
| Docket Number | 6663 |
| Citation | 89 P.2d 552,60 Idaho 137 |
| Parties | CHARLES Z. SEELIG, Appellant, v. NELLY L. SEELIG, Respondent |
| Court | Idaho Supreme Court |
APPEAL AND ERROR-FINAL JUDGMENT-NONAPPEALABLE ORDERS-ALIMONY PENDENTE LITE AND COUNSEL FEES.
In divorce action, an order requiring husband to pay forthwith court costs, monthly support and maintenance allowance to wife during pendency of action, and temporary attorney's fees to wife's attorney, was not a "final judgment" within statute, and hence not appealable. (I C. A., sec. 11-201.)
APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Ed S. Elder, Presiding Judge.
Motion to dismiss appeal. Appeal dismissed.
Respondent's motion to dismiss the appeal from the order of the district court for temporary alimony, costs, and attorney's fees granted, and the appeal dismissed.
James A. Wayne, for Appellant.
Wyatt v. Wyatt, 2 Idaho 236, 10 P. 228, was decided in 1886, at a time when the statutes on appeals provided only for an appeal from the final judgment, and when there was no appeal from any order of any kind. This decision also predates the Constitution by some three years, and the court, therefore did not have before it the provisions of article V, section 9, vesting in this court jurisdiction to review, upon appeal "any decision of the district courts, or the judges thereof." Of course, this section of the Constitution does not give a separate right of appeal from any decision of the district court, but only from such judgments and orders as are final in their requirements. The order requiring a husband in a divorce suit to make certain payments for attorney's fees, suit money and temporary alimony is final, as to the amount, and is in the nature of a money judgment.
Since the Wyatt case this court has repeatedly recognized appeals from such orders. Notably in Day v. Day, 15 Idaho 107, 96 P. 431, in which an appeal was taken directly from an order allowing counsel fees, suit money and alimony pendente lite, and with no other purpose and with no end in view than to secure relief from such order (pp. 108-111).
J. Ward Arney, for Respondent.
An order granting allowances pendente lite is non-appealable. (Wyatt v. Wyatt, 2 Idaho 236, 10 P. 228.)
An appeal from an order denying a motion to reconsider is not enumerated in the appeal statute. (I. C. A., sec. 11-201.)
" (Bedke v. Bedke, 56 Idaho 235, 53 P.2d 1175.)
The uniform rule is that when a divorce action is brought by a husband and temporary allowances are ordered by the court, no further proceedings may be taken while the husband is in contempt as to the ordered payments.
Ailshie, C. J., did not participate.
Respondent moves to dismiss the appeal in the above-entitled case setting forth five grounds only one of which need be considered, namely, that no appeal lies from an order for the payment of temporary allowances or alimony pendente lite and counsel fees.
On May 20, 1938, after the filing of an action for divorce, the trial court entered upon respondent's motion an order that appellant pay forthwith $ 50 court costs, $ 150 a month to respondent during the pendency of the divorce action for her monthly support and maintenance, and $ 175 for temporary attorney's fees for attorney for respondent. On June 4, 1938, appellant moved to reconsider the foregoing order, the court took the same under advisement and on July 26, 1938, entered an order denying the motion to reconsider and affirming the order on temporary allowances of May 20, 1938. The notice of appeal recites that appellant appeals:
"From that certain order and/or judgment made by the above entitled Court under date of July 26, 1938 . . . . wherein and whereby the order on temporary allowances made herein under date of May 20, 1938 . . . . was and is affirmed, and the motion of plaintiff to reconsider the temporary allowances made and entered by and in said lastmentioned order was and is denied, and also from said certain order and/or judgment made herein on July 26, 1938 . . . . and reconsidered by the above-entitled Court upon the motion of said plaintiff."
Appellant urges that the order appealed from is, or is in the nature of, a final judgment and therefore appealable under the statute. Respondent, on the other hand, cites Wyatt v Wyatt, 2 Idaho 236, 10 P. 228, wherein it is held that under the laws of the territory of Idaho no appeal lies to the supreme court from an order in an action of divorce for the payment of alimony pendente lite and counsel...
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