Harron

Motion to dismiss the appeal. Judgment was rendered in this action in favor of plaintiff for a divorce from the defendant, and, the defendant having appealed therefrom, the superior court made an order requiring him to pay to the plaintiff the sum of one hundred dollars as and for counsel fees, and forty dollars as and for costs, to enable the plaintiff to contest motion for a new trial in said court. From this order the defendant has appealed. The plaintiff moves to dismiss the appeal upon the ground that this court has no jurisdiction of the appeal by reason of the fact that the value of the property in controversy—that is, the amount of money required by the order to be paid—is less than three hundred dollars.

“The supreme court shall have appellate jurisdiction in all cases in equity except such as arise in justices’ courts; also in all cases at law .... in which the demand, exclusive of interest or the value of the property in controversy, amounts to three hundred dollars.” (Const., art. VI, sec. 4.) Under this provision of the constitution this court has appellate jurisdiction in “all cases in equity,” irrespective of the value of the property in controversy. It is only in…

I dissent. This appeal involves a distinct and independent order for the payment of money only. Such an order has been held to he a final judgment from which an appeal lies, irrespective of the general course of the main action for divorce. In Sharon v. Sharon, 67 Cal. 195 , this court, speaking of such an order, said: “Nothing remained to be done except to enforce it, and for that purpose an execution might issue and be proceeded on as if the judgment had been rendered in an ordinary action for the recovery of money. Although the pendency of an action for divorce constituted the basis of the order, it was no part of the relief demanded in the complaint”; and, further, quoting from another case: “While it may be true that a petition for alimony and attorney’s fees could not be brought as a separate and independent suit, yet it is also true that such an application and order for an allowance pendente lite, especially such a one as is made in this case, is, so far as it affects the rights of his appellant in its consequences, wholly independent of the suit for divorce.” Being an independent final judgment for money only, upon which a common execution will issue, I think it should be…