Clay v. Clay

Oregon Supreme Court

Clay v. Clay

108 P. 119, 56 Or. 538, 1910 Ore. LEXIS 197

CourtOregon Supreme Court

DecidedApril 12, 1910

StatusPublished

Cited by16 cases

This text of 108 P. 119 (Clay v. Clay) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clay v. Clay, 108 P. 119, 56 Or. 538, 1910 Ore. LEXIS 197 (Or. 1910).

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Opinions

Opinion by

Mr. Chief Justice Moore.

1. This is a motion to dismiss an appeal. The facts are that this suit was begun by the husband to have his marriage contract dissolved. The defendant answered the complaint, and interposed a motion, supplemented by affidavits, for an allowance of money to enable her properly to make a defense. Based on her application, the judge, pursuant to the provisions of the statute (Section 512, B. & C. Comp.), ordered the plaintiff to pay the sum of $500 and he appeals.

It is argued by defendant’s counsel that the order complained of is not final, and therefore unappealable. An order affecting a substantial right, and which in effect determines the suit, so as to prevent a decree therein, is final, and may be reviewed on appeal. Section 547, B. & C Comp. So far as disclosed by the transcript, no decree granting or denying the divorce has been rendered. The order herein is not void, and, having been made prior to any final decree, it is merely interlocutory, and for that reason no appeal lies. Sterling v. Sterling, 43 Or. 200, 204 (72 Pac. 741); Kesler v. Nice, 54 Or. 585 (104 Pac. 2). The plaintiff is not remediless, however; for, when the cause is finally determined, and intermediate order affecting a substantial, right may be reviewed on appeal. [540]*540Van Voorhies v. Taylor, 24 Or. 247 (33 Pac. 380); Farmers’ Bank v. Key, 33 Or. 443 (54 Pac. 206).

It follows that the appeal should be dismissed, and it is so ordered. Dismissed.

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Opinion by

Mr. Chief Justice Moore.

1. This is a motion to dismiss an appeal. The facts are that this suit was begun by the husband to have his marriage contract dissolved. The defendant answered the complaint, and interposed a motion, supplemented by affidavits, for an allowance of money to enable her properly to make a defense. Based on her application, the judge, pursuant to the provisions of the statute (Section 512, B. & C. Comp.), ordered the plaintiff to pay the sum of $500 and he appeals.

It is argued by defendant’s counsel that the order complained of is not final, and therefore unappealable. An order affecting a substantial right, and which in effect determines the suit, so as to prevent a decree therein, is final, and may be reviewed on appeal. Section 547, B. & C Comp. So far as disclosed by the transcript, no decree granting or denying the divorce has been rendered. The order herein is not void, and, having been made prior to any final decree, it is merely interlocutory, and for that reason no appeal lies. Sterling v. Sterling, 43 Or. 200, 204 (72 Pac. 741); Kesler v. Nice, 54 Or. 585 (104 Pac. 2). The plaintiff is not remediless, however; for, when the cause is finally determined, and intermediate order affecting a substantial, right may be reviewed on appeal. [540]*540Van Voorhies v. Taylor, 24 Or. 247 (33 Pac. 380); Farmers’ Bank v. Key, 33 Or. 443 (54 Pac. 206).

It follows that the appeal should be dismissed, and it is so ordered. Dismissed.

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Bluebook (online)

108 P. 119, 56 Or. 538, 1910 Ore. LEXIS 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clay-v-clay-or-1910.

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