Opinion
8 Div. 176.
June 5, 1919.
Appeal from Circuit Court, Franklin County; C. P. Almon, Judge.
James L. Almon, Henry D. Jones, and Travis Williams, all of Russellville, for appellant.
Ray Cooner, of Jasper, and W. L. Chenault, of Russellville, for appellee.
It is insisted by counsel for appellee that the appeal in this cause must be dismissed. The point is well taken. It is quite clear that the decree of the court overruling the motion to set aside the decree of October 24, 1918, is not such an interlocutory decree as to come within any of the provisions of section 2838 et seq. of the Code of 1907. The decree of October 24, 1918, is, of course, not a final decree, but one purely interlocutory in its nature, providing for alimony pending the suit.
If by reason of any change in circumstances of the complainant's condition in life such allowance of temporary alimony should be modified or reduced, or he feels that he should be relieved of the payment of any installments past due, it is open to him to make application for such purpose to the chancellor, who exercises the sound judicial discretion in such matters, and whose conclusions thereon can only be reviewed by writ of mandamus and not appeal. Ex parte Jones, 168 Ala. 183, 53 So. 261; Ex parte Jones, 172 Ala. 186, 55 So. 491.
There is no merit in the insistence that the decree of October 24th is a final decree because of the provisions therein contained ordering the proceedings in the cause suspended until said alimony is paid. As to this provision, see Webb v. Webb, 140 Ala. 262, 37 So. 96, 103 Am. St. Rep. 30; State of Washington ex rel. Crombie v. Superior Court, etc., 85 Wn. 607, 148 P. 882, L.R.A. 1915E, 567, and note; Trough v. Trough, 59 W. Va. 464, 53 S.E. 630, 4 L.R.A. (N.S.) 1185, 115 Am. St. Rep. 940, 8 Ann. Cas. 837; 1 R.C.L. 914. We merely cite these authorities without entering into a consideration of this question, as it is not here for review.
Upon the face of the proceeding, the complainant is made to appear as in contempt of court for noncompliance with the order of court as for alimony pendente lite; and, in any event, any action of the court in reference to further proceedings in this cause, resting in the sound discretion of the chancellor, could only be reviewed by mandamus. This court is without jurisdiction to entertain an appeal from orders of the lower court in a pending suit in chancery, unless such decree or order is either a final decree or is one of the certain interlocutory orders provided by statute. Hayes v. Hayes, 192 Ala. 280, 68 So. 351.
The appeal will therefore be dismissed.
Appeal dismissed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.