Opinion
April 22, 1936.
March 3, 1939.
Appeals — Order refusing counsel fees and alimony — Divorce case — Non-pros. of appeal from divorce decree.
1. An order refusing to allow counsel fees and alimony in a pending divorce action is an interlocutory one, from which no appeal lies.
2. The refusal of counsel fees and alimony can be assigned for error after the final decree has been entered in the divorce proceeding and will then be considered along with the appeal on the merits.
3. Where it appeared that an appeal by respondent from a decree granting libellant a divorce was non-prossed, an appeal from the refusal to allow respondent counsel fees and alimony, disposition of which had been withheld until the appeal on the merits was argued, was quashed.
Appeal, No. 272, April T., 1936, from decree of C.P. Westmoreland Co., Aug. T., 1934, No. 168, in case of Robert Boerio v. Julia Boerio.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Appeal quashed.
Petition and rule for allowance of alimony pendente lite and counsel fees and expenses. Before COPELAND, P.J.
The facts are stated in the opinion of the Superior Court.
Order entered discharging rule and dismissing petition. Respondent appealed.
Error assigned, was discharge of rule.
James Gregg, of Gregg Copeland, with him Frank Ruff, Jr., for appellant.
A.H. Bell, with him J. Clarke Bell, for appellee.
Argued April 22, 1936.
This was an appeal by a wife from an order of the court below refusing to allow her counsel fees and alimony in a divorce action pending against her as respondent in that court. The order was an interlocutory one from which no appeal lies: Murray v. Murray, 78 Pa. Super. 443. We pointed out in the case of Gould v. Gould, 95 Pa. Super. 387, the distinction, in that respect, between an appeal by one who has been ordered to pay alimony, etc. and an appeal by one who has been refused alimony.
The correct practice where the court has made an order refusing counsel fees, alimony, etc., was pointed out in Murray v. Murray, supra, p. 445, where we said: "Such an order is in no sense final; it can be excepted to but cannot be reviewed until a final decree has been entered in the divorce proceedings and the appeal is properly before this court." The refusal can then be assigned for error and will be considered along with the appeal on the merits: Fisher v. Fisher, 74 Pa. Super. 538, 545, 547, 548.
Disposition of this appeal was accordingly withheld until the appeal on the merits was argued.
Subsequently, on April 19, 1937, the appeal from the decree granting libellant a divorce from respondent, (this appellant), was non-prossed, but our attention was not drawn to it, and, as a result, this appeal was left undisposed of.
The appeal is quashed.