Clay v. Clay

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

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. Van 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.