Therkelsen v. Therkelsen

• Decision Date: 31 October 1898
• Citation: 35 Or. 75,54 P. 885
• Parties: THERKELSEN v. THERKELSEN.
• Court: Oregon Supreme Court

54 P. 885

35 Or. 75

THERKELSEN v. THERKELSEN.

Supreme Court of Oregon

October 31, 1898

Appeal from circuit court, Multnomah county; John B. Cleland, Judge.

Action by Annetta Stella Therkelsen against Lawrence E. Therkelsen for separate maintenance. From an order allowing plaintiff a certain sum for support and attorney's fees pendente lite, defendant appeals. Motion to dismiss the appeal. Overruled.

F. Schlagel, for the motion.

Thos N. Strong, opposed.

WOLVERTON C.J.

This is a suit by the wife to procure a separate maintenance from the husband under the act to provide for the support of married women approved February 25, 1889 (2 Hill's Ann.Laws Or 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 sixty dollars for the support of the plaintiff during the pendency of this suit, and the further sum of fifty dollars 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. By statutory intendment the act alluded to gives a distinct remedy, unconnected with, and independent of, any divorce proceedings between the parties. It is enacted by section 2 that, "if it shall appear to the court, after hearing the parties, that said husband is able to support or contribute to the support of his wife and children, if any and that he neglects or refuses to perform his duty in that respect, the court shall have power to make such decree as to the support of said wife and children, if any, by said husband as shall be equitable in view of the circumstances of both parties." Section 3 provides: "The practice in such cases shall conform as nearly as may be to the practice in divorce cases, and the court shall have power to enforce its orders as in other equity cases." The sole and ultimate purpose of the act is to provide for the separate support and maintenance of the wife and minor children by the marriage, if any. The court is invested with the power to grant the contemplated relief "after hearing the parties," and it seems it must come after trial, and as a result of a final hearing. It is not incidental, as in a suit for divorce, where the purpose is to enable the wife to litigate with her husband, but final as the sole and ultimate redress to be...