O'Brien v. O'Brien

57 P. 374, 36 Or. 92, 1899 Ore. LEXIS 62
CourtOregon Supreme Court
DecidedNovember 13, 1899
StatusPublished
Cited by16 cases

This text of 57 P. 374 (O'Brien v. O'Brien) 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
O'Brien v. O'Brien, 57 P. 374, 36 Or. 92, 1899 Ore. LEXIS 62 (Or. 1899).

Opinions

Mr. Justice Bean

delivered the opinion.

1. This is an application on behalf of the respondent for an order requiring the appellant to pay such a sum of money as the court may deem reasonable for her support pending the appeal, and for counsel fees and expenses. The petitioner is met at the outset with the objection, which we think well taken, that the relief sought is not within the jurisdiction of this court. The constitution provides that “the supreme court shall have jurisdiction only to revise the final decisions of the circuit courts : ’ ’ Const. Or., Article VII, § 6. It is therefore strictly an appellate tribunal, and it is only when the circuit court has [94]*94acted, and its act is brought here for review in the manner provided by law, that our jurisdiction attaches. We are therefore of the opinion that we have no power to grant the relief prayed for, because the jurisdiction invoked is original, and not appellate. It is true that as an incident to, and in aid of, its appellate jurisdiction, the court has the power to issue and enforce such writs and make such orders as may be necessary or proper to the complete exercise of its jurisdiction; but the order sought is in no way essential or necessary for that purpose. We are not unmindful of the rule that jurisdiction in divorce cases is said to carry with it, by implication,' the incidental power to make a proper allowance for alimony pendente lite and “suit money but we have no jurisdiction of such cases, except as conferred by the constitution, which limits it to revising the actions of the circuit court. And the statute on the subject, which provides that an allowance for that purpose may be made at any time after the commencement of the suit and before a decree therein, contemplates that, in harmony with the constitution, its exercise shall be confined, in the first instance, to the court of original jurisdiction : Hill’s Ann. Laws, § 500. The cases relied upon by counsel for petitioner, from Michigan, Colorado, and Nevada (Goldsmith v. Goldsmith, 6 Mich. 285 ; Pleyte v. Pleyte, 15 Colo. 125, 25 Pac. 25; Lake v. Lake, 17 Nev. 230, 30 Pac. 878), though apparently in point, were tried and determined under constitutions by the terms of which jurisdiction is vested in the appellate court to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, and other remedial writs, with authority to hear and determine the same : 1 Comp. Laws, Mich. p. 58 ; 1 Mills’ Ann. Stat. Colo. p. 258. Or, in addition to those enumerated, “all writs necessary or proper to the complete exercise of its appellate jurisdiction:” Const. Nev. Article [95]*95VI, § 4. Our constitution contains no such provision, and vests no such jurisdiction in this court, but, even under a constitution similar to that of Nevada, the Supreme Court of California, in Reilly v. Reilly, 60 Cal. 624, held that it had no power to make an allowance for alimony pendente lite. The petition is denied.

For appellant there was an oral argument by Mr. James Gleason. For respondent there was an oral argument by Mr. Franldin P. Mays.

Motion Overruled.

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Bluebook (online)
57 P. 374, 36 Or. 92, 1899 Ore. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obrien-v-obrien-or-1899.