Taylor v. Taylor

• Decision Date: 23 September 1913
• Citation: 134 P. 1183,70 Or. 510
• Parties: TAYLOR v. TAYLOR.
• Court: Oregon Supreme Court

134 P. 1183

70 Or. 510

TAYLOR v. TAYLOR.

Supreme Court of Oregon

September 23, 1913

Appeal from Circuit Court, Clackamas County; J.A. Eakin, Judge.

Suit to avoid a marriage by Charles D. Taylor against Minnie N Taylor. From an order granting plaintiff's motion to dismiss, but awarding suit money and an allowance for maintenance during the pendency of the suit, plaintiff appeals. On motion for an allowance for suit money and maintenance pending the appeal. Motion overruled.

The plaintiff brought a suit to declare his marriage with defendant void. On answer filed by defendant, plaintiff moved to dismiss, which motion was granted; the court awarding defendant $2,500 suit money and $8,665 for maintenance while the suit was pending. From the order granting suit money and maintenance, plaintiff appealed. Upon notice of appeal being filed, and before the justification of the surety on the appeal bond, defendant applied to the circuit court for suit money and maintenance pending the appeal, which was denied the circuit court holding that it had no jurisdiction to make such order after making its final order of dismissal. The defendant filed in this court a supplementary transcript showing the proceedings above recited, and moves this court for an allowance for suit money and maintenance.

John F Logan and I.N. Smith both of Portland, for appellant.

Flegel Reynolds & Flegel, of Portland, for respondent.

McBRIDE C.J. (after stating the facts as above).

This court has no original jurisdiction to grant suit money or maintenance pending the hearing of a case upon appeal. This is settled by the case of O'Brien v. O'Brien, 36 Or. 92, 57 P. 374, 58 P. 892. No appeal was taken by defendant from the refusal of the court to grant further suit money and maintenance, and the question, therefore, is one in which we are either required to exercise original jurisdiction or it is not here at all. While section 2 of article 7 of the Constitution , as amended November 8, 1910 (see Laws 1911, p. 7), has given this court original jurisdiction in mandamus, quo warranto, and habeas corpus proceedings, the same section provides that in all other respects its jurisdiction shall remain unchanged until otherwise provided by law. This leaves the law in the same condition as it was when O'Brien v. O'Brien, supra, was decided, and that case is controlling.

Section 512, L. O.L., provides, in substance, that the circuit court...