In Banc. This is an application for an order allowing plaintiff the sum of $50 as additional suit money and the sum of $500 as additional attorney's fees in this court, based upon the affidavit of plaintiff wherein it is shown that the decree of the lower court provided that defendant should pay the plaintiff for the care and support of their minor children, commencing the 15th day of February, 1931, the sum of $75 per month, and further, that plaintiff have judgment against defendant for the sum of $750 attorney's fees, and $126.25 costs and disbursements; that the defendant has failed and refused to pay the plaintiff any of the sums provided for in that decree, and that plaintiff is without funds for her support and the support of her minor children.
The motion was not submitted as a review of the decree of the trial court, but was initiated in this court, and it is noticed that the application is both for her support and that of the minor children and for attorney's fees and expenses.
In O'Brien v. O'Brien, 36 Or. 92 (57 P. 374, 58 P. 892), it appears that after an appeal had been perfected in that case the plaintiff applied to the supreme court for an order requiring defendant to pay a reasonable amount for her support and counsel fees. Former Mr. Justice BEAN delivered the opinion, in which it is stated, in substance, 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., Art. VII, § 6.
"It is therefore strictly an appellate tribunal, and it is only when the circuit court has acted, 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 *Page 413 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 pendentelite 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."
In White v. White, 100 Or. 387, (190 P. 969, 197 P. 1080), the plaintiff and respondent filed a motion in the supreme court for suit and maintenance money. Chief Justice McBRIDE, in passing upon the motion, stated that the circuit court granted the plaintiff an order for $60 suit money pending the hearing, which was exhausted by the expense of the trial therein. The affidavit showed that she was practically destitute and unable to pay for her printed briefs and attorney's fees, citing O'Brien v.O'Brien, supra; Taylor v. Taylor, 70 Or. 510 (134 P. 1183, 140 P. 999). It was held that "this court has no jurisdiction to grant suit money or maintenance money pending a decree."
In Taylor v. Taylor, supra, an opinion was written by Chief Justice McBRIDE. It was held as follows:
"This court has no original jurisdiction to grant suit money or maintenance pending the hearing of a case upon appeal. This is settled by the case of O'Brien v. O'Brien, 36 Or. 92 (57 P. 374, 58 P. 892)." *Page 414
No appeal has been taken in the present suit by Mrs. LaFollett from the allowance of suit and maintenance money, and it must be presumed that the decree was satisfactory to her. The difficulty seems to be that the defendant has not paid the sums required by the decree to be paid to the plaintiff. We are bound by the rule often announced, as well as by the mandate of our constitution, to adhere to the rule that this is a court of review, and a proceeding initiated in this court for provisions for maintenance and suit money does not give this court jurisdiction to act in the first instance, independent of the decree in the trial court.
In Hengen v. Hengen, 85 Or. 155 (166 P. 525), in an opinion by Mr. Justice BURNETT, we find the following:
"It is manifest that the granting of suit money is an interlocutory matter, and is to be made only before decree and not afterwards. In this case the record discloses that the circuit court awarded the defendant $500 for this purpose,pendente lite. This exhausted the original jurisdiction on that subject. Of course this branch of the case might be reviewed on appeal on the authority of O'Brien v. O'Brien, 36 Or. 92 (57 P. 374, 58 P. 892), like any other question involved, except for the fact that there is no testimony before us about the amount or items of the defendant's necessary expenses in defending this suit."
In Thomsen v. Thomsen, 128 Or. 622, 631 (275 P. 673), we find the following:
"The defendant, by appropriate procedure, has moved for an allowance of attorneys' fees for appearing in this court."
This was upon final hearing of the suit and the matter was apparently presented in an entirely different manner than the motion in the present case.
The motion must be denied. It is so ordered. *Page 415
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