
    [Civ. No. 316.
    Third Appellate District.
    May 16, 1907.]
    ALICE E. HINER, Respondent, v. J. F. HINER, Appellant.
    Action fob Maintenance—Equity Case—Order fob Allowance Pending Suit—Appeal—Jurisdiction of Supreme Court—Transfer.— One who has a cause of action for divorce may, without suing for a divorce, maintain a separate cause of action for maintenance, addressed to the equity jurisdiction of the superior court. An appeal from an order granting an allowance pending such action should he taken directly to the supreme court. When taken to this court, it cannot he dismissed, hut must he transferred to the supreme court under section 4 of article "VT of the constitution.
    APPEAL from an order of the Superior Court of Sonoma County granting an allowance pending an action for maintenance. Emmett Seawell, Judge.
    The facts are stated in the opinion of the court.
    J. F. Thompson, for Appellant.
    J. W. Oates, for Respondent.
   CHIPMAN, P. J.

Plaintiff is the wife of defendant and brings the action for separate maintenance for herself and three children of the marriage. The complaint alleges that in October, 1902, plaintiff and defendant were residing together in the county of Chehalis, state of Washington, and that in said month defendant abandoned and willfully deserted plaintiff and has never returned to plaintiff or to their said 'residence, but still continues to abandon and desert plaintiff; that defendant came to California shortly after October, 1902, “and is now a bona fide resident of Sonoma County”; that “plaintiff ever since October, 1902, has been and is now a bona fide resident of said Chehalis County, State of Washington”; that defendant is possessed of considerable means, setting forth a description of property alleged to be owned by him, and that plaintiff, when so abandoned and deserted by defendant, was left with no means of income and with property “of but little value and plaintiff now has no means of support.” Plaintiff alleges that she is in need of $100 per month from October, 1902, thenceforth “for her support and for the support of her said minor children”; that “under the laws of the State of Washington the plaintiff has a cause of action against defendant for a divorce.” The-prayer of the complaint is that it be decreed that plaintiff “has a cause for divorce against defendant; that $100.00 per month is a proper amount for the support of plaintiff and her said minor children and has been ever since said desertion of plaintiff by defendant.” Attorney’s fees are also prayed for in the sum of $250 and $100 pending the trial of the action and for costs and expenses of suit, and “that the same may be made a charge upon said land and premises,” and for such other relief as may be meet and proper.

Plaintiff gave notice to defendant that at a time stated she would move the court for an order requiring defendant to pay plaintiff $100 per month, commencing at the filing of the complaint; also for $400 attorney’s fees and $300 for costs and expenses; that said motion would be heard upon the pleadings and upon certain affidavits, copies of which were served with the notice. The matter came on to be heard upon said papers and upon counter-affidavits filed by defendant, and upon the hearing the court made an order that defendant forthwith pay $210 as and for alimony; $50 costs of suit and $100 as attorney’s fees and directed that execution issue to enforce collection of the same. The appeal is from this order and is taken directly to this court.

Section 137 of the Civil Code provides for the payment of alimony “where an action for divorce is pending.” As amended in 1905, Statutes 1905, page 205, it also provides further: “When the wife has any cause of action for a divorce as provided in section ninety-two of this code, she may, without applying for a divorce, maintain in the superior court an action against him for permanent support and maintenance of herself or of herself and children. During the pendency of such action the court may, in its discretion, require the husband to pay as alimony any money necessary for the prosecution of the action and for the support and maintenance, and execution may issue therefor in the discretion of the court. The final judgment in such action may be enforced by the court by such order or orders as in its discretion it may from time to time deem necessary, and such order or orders may be varied, altered or revoked at the discretion of the court.”

It was held in Sharon v. Sharon, 67 Cal. 185, [7 Pac. 456, 8 Pac. 709], that divorce is an action in equity within the meaning of the constitution conferring appellate jurisdiction upon the supreme court; and in Benton v. Benton, 122 Cal. 395, [55 Pac. 152], it was held that in actions for divorce, with application for alimony or allowance for support pendente lite, the cause of action is divorce and the support of the wife pending suit is an incident. Hardy v. Hardy, 97 Cal. 125, [31 Pac. 906], was an action for maintenance, without applying for a divorce. The statute gave the action then “when the husband willfully deserts the wife.” The court said: “Proof of willful desertion by the husband is therefore an essential element in the plaintiff’s cause of action.” As the statute now reads we should hold it to be an essential element of the plaintiff’s cause of action that the wife should show “a cause of action for divorce as provided in section 92” of the Civil Code. To do this she must appeal to the equity side of the court, and hence it would seem to follow that the action for maintenance must be addressed to the equity powers of the court. If, however, this reasoning be doubtful, the language of the section removes all doubt. The judgment contemplated is a judgment confided to the discretion of the court, and may be enforced at its discretion by order or orders, and these orders may with like discretion be varied, altered or revoked. Clearly a jury trial could not be demanded to assess an amount which rests wholly within the discretion of the court, and which may, upon cause shown, be taken away by the court.

The supreme court is given appellate jurisdiction “in all cases of equity, except such as arise in justice’s court.” (Const., art. VI, sec. 4.) The appeal, in our opinion, should have been taken directly to the supreme court and not to this court. By the same section it is provided that where the appeal is not taken to the proper court it shall not be dismissed, “but the cause shall be transferred to the proper court upon such terms as to costs or otherwise as may be just, and shall be proceeded with therein as if regularly appealed thereto.”

It is therefore ordered that the cause he transferred to the supreme court, the costs to attend the final disposition thereof by that court.

Burnett, J., and Hart, J., concurred.  