#### James Taylor et al. v. Jemima Taylor.

1. No appeal is given from an allowance of alimony, *pendente*lite, made by a court in session, or a judge in vacation, either by the act of March 11, 1853, “concerning divorce and alimony,” or the amendatory act of April 15, 1857. The allowance and amount in such cases rest in the sound discretion of the court or judge.

2. Under section 17 of the act of 1853, as amended by the act of April 15, 1857, an appeal may be taken by either party, to the District Court, from a judgment of the Court of Common Pleas, in favor of the wife for alimony alone, upon a petition, filed under section 10 of the act named, as amended April 15, 1857.

*723. The provision of section 16, of the aot of 1853, disallowing an appeal to the District Court, from a judgment of the Court of Common Pleas allowing alimony, is inconsistent with the provision of section 17, as amended by the act of 1857, allowing such appeal, and is to that extent abrogated by the later act.

Error to the District Court of Morgan county.

On the first day of May, 1878, the defendant in error filed her petition in the Court of Common Pleas of Morgan •county, against the plaintiffs in error, for alimony alone. At the following November term of the court, the case was heard upon its merits, and a judgment rendered in favor of the defendant in error against her husband, James Taylor, one of the plaintiffs in error, for her reasonable alimony, which was made a charge upon his real estate, and for costs. The plaintiff in error, James Taylor, thereupon gave notice of his intention to appeal the case to the District Court, and afterward, on the 23d day of December, 1873, filed his bond for an appeal, to the acceptance of the clerk, in the amount fixed by the court. During the vacation of the court, and pending the appeal, upon notice to the plaintiff in error, alimony in the sum of $200 was granted, by a judge of the court, for the sustenance of the defendant in error, during the pendency of the petition, whereupon the plaintiffs in error gave notice of their intention to appeal from the allowance, and asked the judge to fix the amount of the appeal bond, which he refused to do ; and thereupon the plaintiffs in error excepted to the allowance, and to the refusal of the judge to fix the amount of the appeal bond.

At the September term, 1874, of the District Court, on motion of the defendant in error, the court dismissed the appeal, on the ground that the case was not, under the statute appealable, to which ruliug the plaintiffs in error excepted, and now file their petition in error in this court to reverse the judgment of the District Court on the following grounds:

“ 1. That Hon. F. W. Wood, a judge of the District *73Court, allowed alimony *pendente lite*— not in open session but at chambers.”

“2. The District Court erred in dismissing the appeal.”

*H. H. Ball,*for plaintiff in error:

Previous to 1853, there was no right, of appeal in this class of cases. No appeal was authorized by the act of 1853, except in cases arising under the 14th section. *Tappan*v. *Tappan,*6 Ohio St. 64.

Section 17 of the act of 1857 was intended to make appealable all cases affecting alimony except where the petition was dismissed on final hearing on the merits ; therefore it was intended that such a case as this might be appealed.

As to whether section 17 is inoperative by virtue of section 16 of the act of 1853, that section not having been expressly repealed, see *Moore*v. *Vance,*1 Ohio, 10; *Ludlow’s Heirs*v. *Johnson et al.,*3 Ohio, 553 ; *Seymour*v. *Milford & Chillicothe Turnpike Co.,*10 Ohio, 482 ; *Raudebaugh*& *wife*v. *Shelley et al.,*6 Ohio St. 316; *Lorain Plank Road Co.*v. *Cotton,*16 Ohio St. 263; *Exchange Bank*v. *Hines,*3 Ohio St. 53; *Champaign Co. Bank*v. *Smith,*7 Ohio St. 48.

*H. JH. Ball,*with whom was *Hanna $ Kennedy,*for plaintiff in error.

*M. M. Granger,*with whom was *Stanbery § Grew,*for defendant in error.

Section 16, divorce act, S. & C. 515, denies an appeal from a decree granting alimony where the petition asks for alimony alone.

Unless so much of said section as relates to “ petitions for alimony alone,” is repealed by the act of April 15,1857, 54 O. L. 131, there could be no appeal in this case.

Said act of April 15, 1857, expressly repeals sections 3, 9, 10, 15 and 17 of the divorce act. It does not expressly repeal, amend or modify section 16. It contains no part of section 16 and does not profess or purport to amend or repeal said section. Section 16, Art. II. Ohio Constitution.

For the rule of repeal by implication, see *Ludlow*v. *John*
      *74
      *son, 3*Ohio, 564; *Dodge*v. *Gridley,*10 Ohio, 173; *State*v. *Dudley,*1 Ohio St. 437; *Raudebaugh*v. Shelley, 6 Ohio St 307; *Fosdick*v. *Perrysburgh,*14 Ohio St. 472.

Section 16 is not repealed or amended by implication, unless it is done by section 17 as amended by the act of 1857.

The words in section 17, “In cases in which the court shall give judgment . . . for alimony alone, without granting a divorce,” are the only ones that even seem to authorize an appeal in this cause.

Can they not stand and have effect without affecting the provision of section 16 touching eases of petition for alimony alone? Amended section 16 grants a light of appeal in four classes of cases. Class two is defined by the words above quoted. If the legislature intended to include in class two such a case as the one at bar, they would have adopted a shorter definition, which would have embraced classes two and four — thus: “ In cases where alimony has been decreed to a wife.” And then they would have amended section 16 by omitting the words, “ or petition for alimony alone.”

. Section 16 was before them, short, clear, and definite. They let it stand unchanged.

Moreover, the insertion of the words, “ without granting a divorce,” in the definition of class two, indicates that the general assembly had in mind cases in which a court might grant divorce as well as alimony, but decided that it would not exercise its power to give a divorce. No court would do so upon a petition for alimony alone.

Effect can be given to both sections by construeing section 17 as granting an appeal in — 1. Cases of dismissal without hearing on the merits; 2. Cases of alimony decreed under a petition for divorce and alimony; 3. Cases under section 14; and 4. Cases of decrees for both divorce and alimony. And holding that by section 16 appeals are denied in — 1. Cases of decree for divorce only; 2. Cases of petitions foe alimony alone.

*75The well-settled rule of this court, above referred to, calls for such holding.

Rex, J.

As to the first assignment of error, it is deemed sufficient to say, that by section nine of the act of 1853, “concerning divorce and alimony,” as amended by the act of April 15,1857, powrnr is given to the court, while in session, or a judge thereof, during vacation, upon proper notice, to grant to the wife alimony, *pendente lite,*and that no appeal is given by either of the acts named, from such allowance, whether made in open session or by a judge of the court in vacation. The allowance and its amount are-left, by the statute, to the sound discretion of the court or judge.

The real question in the case is that made by the second assignment of error.

The petition is filed under section 10 of the act above-named, as amended April 15,1857, 54 O. L. 131, which provides that a wife, for certain causes therein enumerated, may file a petition for alimony alone; and it is claimed by the plaintiff in error, that where a judgment is rendered in favor of the wife upon .such petition, an appeal may be taken by either of the parties to the District Court. The validity of this claim depends upon the proper construction of sections 16 and 17 of the act. -The original act was passed and took effect March 11, 1853. Section 16, which has not been altered or changed by any subsequent act of the general assembly, reads as follows: “ That in case of petition for divorce, or petition for alimony alone, no appeal shall be allowed from any judgment or order of the Court of Common Pleas to the District Court.”

By section 17 of the act of March 11, 1853, appeals were allowed from .the Common Pleas to the District Courts only, in cases arising under the 11th, construed by this court, in *Tappan*v. *Tappan,*6 Ohio St. 64, to mean the 14th section of the act. By the act of April 15, 1857, 54 O. L. 131, this section was so amended as *76to allow, under the construction given to it by this court in *Price*v. Price, 10 Ohio St. 816, an appeal by either party to the District Court, in cases in which judgment had been rendered by the Court of Common Pleas in favor of the ■wife for alimony alone, without granting a divorce. So ■that section 16 of the original, and section 17 of the amendatory acts, are in direct conflict, in so far as it regards the right of either party to appeal to the District Court from a judgment of the Court of Common Pleas, for alimony alone.

Although repeals, by implication, are not favored under the constitution of this state, yet the well-settled rule of •construction is, that where two statutes, on the same subject, contain irreconcilably repugnant provisions, the later •statute, by its necessary operation, abrogates the former.

We are therefore of opinion that the case is appealable, .and that the District Court erred in dismissing it.

The judgment of the District Court is reversed, and the cause remanded to that court for further proceedings.

MoIlvaine, C. J., and Welsh, White, and Gilmore, J.J., concurring.