Wyatt v. Wyatt

• Decision Date: 05 March 1886
• Citation: 10 P. 228,2 Idaho 236
• Parties: WYATT v. WYATT
• Court: Idaho Supreme Court

10 P. 228

2 Idaho 236

WYATT v. WYATT

Supreme Court of Idaho

March 5, 1886

DIVORCE-ALIMONY.-The allowance of alimony to the wife and counsel fees pending an action of divorce rests in the sound discretion of the trial court.

ALIMONY-ORDER NOT APPEALABLE.-Under the laws of this territory no appeal lies to the supreme court from an order in an action of divorce, for the payment of alimony pendente lite, and counsel fees. The parties must abide by the discretion of the court in this regard until a final judgment is rendered in the action.

RESTRAINING ORDER DURING SUIT FOR DIVORCE.-In an action for divorce a restraining order to save the property pending the litigation may be reviewed on an appeal to this court.

APPEAL from District Court, Ada County.

Affirmed.

Brumback & Lamb, for Appellant.

Pending proceedings for divorce, a proper case of emergency being shown, may be enjoined from interfering with the custody of the children or of property in the possession of the wife. (Rose v. Rose, 11 Paige Ch. 166; Vanzant v Vanzant, 23 Ill. 536; Errissman v. Errissman, 25 Ill. 136.) Temporary alimony must be limited to the actual wants of the wife. (Germond v. Germond, 4 Paige, 643.) Where the wife has a separate income, alimony for support denied. (Collins v. Collins, 2 Paige, 9; Denton v Denton, 1 Johns. Ch. 364.)

Huston & Gray, for Respondent.

"The order for alimony merely enforces the husband's duty to support his wife." (Stewart on Marriage and Divorce secs. 365, 366, 368; 2 Bishop on Marriage and Divorce, secs. 374, 384, 385, 387, 391, 393, 396, 406, 419, 420.) The power to decree alimony falls within the general powers of a court of equity. (Galland v. Galland, 38 Cal. 265; Eidenmuller v. Eidenmuller, 37 Cal. 364; Ex parte Perkins, 18 Cal. 60; Stewart on Marriage and Divorce, secs. 388, 389.)

BRODERICK J. Hays, C. J., and BUCK, J., concurring.

OPINION

BRODERICK, J.

This is an appeal from an order of the district judge, at chambers, awarding to the plaintiff alimony for support pending her divorce suit, and for counsel fees. The first question presented is whether this court has jurisdiction in this class of cases. It is conceded that the court here possesses no power in divorce suits except such as is conferred by statute. Congress has provided that writs of error, bills of exceptions, and appeals shall be allowed in all cases from the final decisions of the district courts to the supreme court of the territory, under such regulations as may be prescribed by law. The legislature has provided, by section 642 of the code, that an appeal may be taken from the district courts to the supreme court from a final judgment, and then the mode of appeal is prescribed. Can it be said that an order for alimony pendente lite is a final judgment within the meaning of the statute?

It is contended by counsel for the appellant that the order is in the nature of a final judgment, and appealable as such, and, in support of this argument, cite Sharon v. Sharon, 67 Cal. 185, 7 P. 456, 635, and 8 P. 709. From a careful examination of the Sharon case, it appears that the decision was placed upon the following grounds: 1. That an action of divorce is in the nature of a case in equity; 2. That by the constitution of California the supreme court had appellate jurisdiction "in all cases in equity." The court say: "Appellate jurisdiction in other enumerated cases was and is conferred, but the jurisdiction of this court in an action of divorce, in our opinion, depends on its being, in this state at least, a case in equity." The decision in this case being based on the terms of the constitution conferring upon the supreme court appellate jurisdiction in all cases in equity, it was further held that "wherever and whenever a superior court has jurisdiction to take any step or proceeding, or make any order in any case in equity, of that step, proceeding, or order the supreme court has appellate jurisdiction."

There is no provision, either in the organic act or statute of this territory, that corresponds to the constitutional provision of California; hence it does not seem to us that the Sharon case is applicable to the case at bar. Our statute defining the appellate jurisdiction of this court (Code, sec. 21) reads: "Its appellate jurisdiction extends to a review of all cases removed to it, under such regulations as are or may be prescribed by law, from the final decisions of the district courts." It is said by Judge Bovier that a "final judgment is one which puts an end to a suit." Certain it is that the order appealed from does not come within this definition. It is an incident to the suit. But it is said in some of the cases that such an order is in the nature of a final judgment. This is the most that has or can be said. That such an order may be said to be in the nature of a final judgment does not convince us that the legislature intended to make it appealable. And as this class of orders is not enumerated among the interlocutory judgments and orders made appealable by other provisions of the statute, it cannot be claimed that an appeal...