#### Fields, Appellant, *v.*Fields et al., Appellees.

(No. 21768

Decided April 19, 1950.)

*Mr. M. H. Dixon,*for appellant.

*Mr. Irwin Greene,*for appellee.

*150Ross, P. J.

An appeal on questions of law and fact was originally filed from an order of the Court of Common Pleas of Cuyahoga County fixing alimony *pendente lite.*This ajjpeal was reduced to an appeal on questions of law.

An examination of the record is conclusive in showing that there was no abuse of discretion by the trial court in making the order from which such appeal was taken. This court has been informed that a motion to dismiss the latter appeal on the ground that no final order or judgment is involved was passed upon by the Court of Appeals of the Eighth Appellate District and the motion overruled. Such motion was not renewed before this court. However, if this court has no jurisdiction to entertain such an appeal, it becomes the duty of this court, *sua sponte,*to dismiss such, an appeal.

It is the conclusion of this court that it has no such jurisdiction, for the reason that no final order or judgment was entered or rendered in the trial court. Jurisdiction on appeal may not be conferred by consent or waiver. The appeal on questions of law must, therefore, be dismissed!

It is recognized in so holding that the conclusion is in conflict with the judgment of the Court of Appeals of the Ninth Appellate District in the case of *Taylor*v. *Taylor,*74 Ohio App., 191, 57 N. E. (2d), 191, and with the action of the Court of Appeals of the Eighth Appellate District in the instant case, and this case will, therefore, be certified to the Supreme Court for such conflict. This court reaches its conclusions for the following reasons:

An act, being “an act concerning divorce and alimony” passed March 6,1840 (38 Ohio Laws, 37, Chapter 305, Revised Statutes [1853], 1 Curwen, 602), was repealed March 11, 1853 (51 Ohio Laws, 377), and' *151new provision made for this action. Revised Statutes (1854), 3 Curwen, 2167, designated Chapter 1252.

Under the former act, jurisdiction was placed in the Supreme Court, in the latter, in the Courts of Common Pleas.

In 3 Curwen, 1938 (1854), 51 Ohio Laws, 57, will be found an act of the General Assembly passed March 11, 1853. This act is entitled “An Act to Establish A Code of Civil Procedure.” Section 604 of this act (3 Curwen, 2036, 51 Ohio Laws, 161), entitled, “Code Not to Control Special Proceedings,” provides that “until the Legislature shall otherwise provide, this Code shall not affect proceedings on habeas corpus, quo warranto, or to assess damages for private property taken for public uses; nor proceedings under the statutes for the settlement of estates of'deceased persons; nor proceedings under statutes relating to dower, *divorce,, or alimony,*or to establish, or to set aside a will; nor proceedings under statutes relating to apprentices, arbitration, bastardy, insolvent debtors; nor any special statutory remedy not heretofore obtained by action; but such proceedings may be prosecuted under the Code, whenever it is applicable.” (Emphasis added.)

Going back to section 3 of this same act (3 Curwen, 1939, 51 Ohio Laws, 57), we find:

“The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished; and in their place, there shall be, hereafter, but one form of action, which shall be called a civil action.”

Section 512 of this same act (3 Curwen, 2021, 51 Ohio Laws, 145) is:

‘ ‘ An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substan*152tial right made in a special proceeding, or upon a summary application in an action after judgment, is, a final order which may be vacated, modified, or reversed, as provided in this title. ’ ’

It is clear, therefore, that, under the Code so in effect in 1854, an action for divorce or alimony or both would have been considered special proceedings and an order made therein affecting a substantial right, such as an order for alimony *pendente lite,*would have been a final order under Section 512, *supra.*

This Code of Civil Procedure took effect by its terms .July 1, 1853 (3 Curwen, 2040, 51 Ohio Laws, 166, Section 614).

In Swan & Critchfield Statutes (1868) we still find the provision that the general provisions of the Code are not applicable to certain special proceedings, including divorce and alimony, until the Legislature shall provide otherwise. (2 Swan & Critchfield Statutes [1868], 1131, Section 604.)

It would seem that the view that actions for divorce and alimony were special proceedings under the Code of Civil Procedure of 1853 is sustained by *Ex parte*Collier, 6 Ohio St., 55, 61.

In 1878 the General Assembly passed an act “to revise and consolidate the laws relating to civil procedure in courts of common pleas and- superior courts, in district courts on appeal and also the laws relating to procedure in error, mandamus, and quo warranto. ’' This act was Senate Bill No. 115 and can be found in 75 Ohio Laws, 597. Title I of the act bore the heading, “Procedure in the Courts of Common Pleas and Superior Courts, and in District Courts on Appeal.” The heading also carried designation of the following divisions:

“Division I. General and Preliminary Provisions.

*153“Division II. Commencement of Actions — Jurisdiction — Issue.

“Division III. Trial.

‘£ Division IV. Judgment.

“Division V. Enforcement of Judgment.

*1 ‘*Division VI. Provisional Remedies.

£ £ Division VII. Special Proceedings.

“Division VIII. Repeals.”

Turning to the heading, Division VII, at page 726 of 75 Ohio Laws, under the title, “ Special Proceedings,” the following chapters appear:

*‘ ‘*Chapter 1. Amercement.

‘ *‘*Chapter 2. Appropriation of Property.

£ *‘*Chapter 3. Arbitration.

“ Chapter 4. Bastardy.

“Chapter 5. Contempts of Court.

*‘ ‘*Chapter 6. Divorce and Alimony.

“ Chapter 7. Dower.

“Chapter 8. Habeas Corpus.

£ *‘*Chapter 9. Partition.

“Chapter 10. Real Actions.

“Chapter 11. Replevin.

“Chapter 12. Sureties — Rights and Remedies of.

“Chapter 13. Taxes and Assessments — Relief against Illegal.

“ Chapter 14. To Change Name.

“ Chapter 15. To Contest Will.

'‘Chapter 16. To Cure Certain Defects, Errors, and Omissions.

“Chapter 17. To Perpetuate Testimony..

“Chapter 18. Water-Craft.

“Chapter 19. Wreck-Masters.”

Now it appears from such category of actions that many other civil actions in addition to action for divorce and alimony, now clearly recognized as not prop*154erly falling within the designation of “special proceedings,” are included in this list, such as “partition” and ‘ ‘ replevin. ’ ’

This act was incorporated in the Revised Statutes of Ohio (1879) as Section 4947 *et seq.*

Section 6707, Revised Statutes, is the same as Section 512 of 3 Curwen’s Statutes, 2021, 51 Ohio Laws, 145, and divorce and alimony is carried under Title I, Division 7, Chapter 6, as special proceedings. (3 Curwen, 2804, Section 5689 *et seq.)*

In an act passed by the General Assembly February 14, 1910, the first General Code of Ohio came into existence. By such codification an entirely different classification of actions and proceedings was adopted. By reference to the titles of part third (the same as now in force) it will be found that, under “Title IV — Procedure in Common Pleas Court,” Division II covers ‘ *‘*civil actions ’ ’; that Division VII covers ‘ ‘ special actions”; that Division IX covers “special proceedings”; and that, under “Division VII — Special Actions,” Chapter III is devoted to “divorce and alimony,” commencing with Section 11979. Under “Division II — '-Civil Actions,” it is provided that “an action is an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judg,ment or decree, by which a party prosecutes another for the redress of a legal wrong, enforcement of a legal right, or the punishment of a public offense.” This definition obviously includes both civil and criminal actions and prosecutions.

Under this division appear Chapter 1, dealing with the “form of action,” Chapter 2, dealing with “parties to action,” Chapter 3, providing “where .the action shall be brought,” Chapter 4, covering the “commencement of the action” and Chapter 5, relating to “pleadings.”

*155Although Division VII, Chapter 3, dealing with divorce and alimony^ has many separate provisions as to pleading, process and parties, on the other hand, many provisions of Division II, ‘ ‘ civil actions, ’ ’ are directly applicable to actions of divorce and alimony, as, for instance, service upon the defendant when a minor, Section 11291, General Code; the provisions for service by publication, Section 11984, General Code; provisions as to *lis pendens,*Sections 11300 to 11301, General Code; provisions as to pleadings, Section 11302 *et seq.,*General Code; the provisions as to trial, Section 11376 *et seq.,*General Code; provisions as to dismissal of an action; and Sections 11247, 11249, 11250, 11252 and 11322, General Code, dealing with minors as parties.

Section 11586, General Code, was applied in *Caprita*v. *Caprita,*145 Ohio St., 5, 10, 60 N. E. (2d), 471, where *Smith*v. *Smith,*103 Ohio St., 391, 133 N. E., 792, is cited to the same effect in an action for divorce.

In *Weeden*v. *Weeden,*116 Ohio St., 524, 156 N. E., 908, the Supreme Court applied the law in a divorce and alimony action, applicable to ordinary actions. On page 528 it is stated:

‘ ‘ That certain special statutory provisions do govern in divorce cases alone is an elementary proposition of law, and also it is elementary that matrimonial actions are neither in a precise sense actions at law nor suits in equity, but are statutory actions in which both jurisdiction and practice depend on the statute. However, it is the general rule that where the statute is silent, practice usually follows the rule in equity (19 Corpus Juris, page 22, Section 23), under which rule the contention of plaintiff in error.would be overruled.

“Since the enactment of Article IV, Section 6, of the Constitution, in its present form, and since the interpretation of that article by this court in various *156adjudications relating to divorce actions, we feel that the specific question here presented is no longer open, and that we are not compelled to resort to the rules of general divorce practice in other states to sustain our position. Plaintiff in error’s entire contention falls because judicial decisions do exist providing procedure for the review of a divorce case.”

It seems apparent therefore that the General Assembly, although recognizing that certain causes had certain peculiar features requiring allocation under the title, “special actions,” considered such causes to be what are generally denominated as *actions*— which is the term used in Section 12223-2, General Code. It is also apparent that the General Assembly definitely removed the actions of “divorce and alimony” from the limitations found in the earlier statutes applicable to such actions, and designedly removed them from the classification of special proceedings, as formerly covered. It is also to be here noted that such change had occurred before the adoption of the 1912 amendment of Section 6, Article IV of the Ohio Constitution, which became effective the 18th day of January 1913. Hence, it must be presumed that the framers of the 1912 amendment of Section 6, Article IV of the Ohio Constitution, in using the term, judgments, therein must have had before them the changes in the allocation of actions for divorce and alimony from the category of “special proceedings” to “special actions.”

In *Chandler & Taylor Co.*v. *Southern Pacific Co.,*104 Ohio St., 188, 135 N. E., 620, the Supreme Court in the first paragraph of the' syllabus stated: “The term [judgment] comprehends all decrees and final orders rendered by a court of competent jurisdiction and *which determine the rights of parties affected there*by.” (Emphasis added.)

It must be apparent that an order for temporary alimony or alimony *pendente lite*does not determine *157the rights of the parties to the action. Such order is subject to modification at any time and, as indicated by its nature, is inherently temporary and of a wholly provisional nature. If, in the absence of abuse of discretion, courts entertaining actions for divorce and alimony, either or both, were to be faced with appeals on questions of law when such orders were made, the beneficial results following the provision for such relief would be greatly limited.

The identical question is considered in 2 Ohio Jurisprudence, 237, Section 116, where it is stated that, an order *pendente lite has been held*to be a final order. A decision cited is that of *King*v. *King,*38 Ohio St., 370, decided in 1882, when, as pointed out hereinbefore, the law definitely placed this action as a “ special proceeding.”

In *Ruthrauff*v. *Ruthrauff,*15 Ohio App., 214, it is stated in the opinion at page 217: ‘ ‘It is admitted that the allowance of temporary alimony is a final order which may be reviewed on error.” In the opinion are cited *Reed*v. *Reed,*17 Ohio St., 563, and *King*v. *King,*38 Ohio St., 370, which cases were predicated upon the then existent law definitely classifying “divorce and alimony” as special proceedings.

In *Taylor*v. *Taylor,*74 Ohio App., 191, 57 N. E. (2d), 931, the court cited no supporting authorities for its conclusions.

In *Maxwell*v. *Maxwell,*7 Ohio Law Abs., 7, apparently the appeal was from a judgment in contempt as well as from an order for alimony *pendente lite.*In any event, no authority is cited in support' of the contention that such an order is sufficient to support an appeal on questions of law. The only case cited in the opinion is *Weeden*v. *Weeden, supra,*as authority for placing an action for divorce and alimony in the category of ordinary actions.

In *Brady*v. *Brady,*47 Ohio Law Abs., 73, 69 N. E. *158(2d), 477, the court again relying on the early Ohio cases took for granted that an order allowing alimony *pendente lite*is a final order, and cited, also, *Ruthrauff*v. *Ruthrauff,*15 Ohio App., 214, considered *supra,*and *Thomas*v. *Thomas,*18 C. C. (N. S.), 368, in which the court cited no authority for its conclusion sustaining an appeal from an order *pendente lite.*

The case of *Smith*v. *Smith,*25 Ohio Opinions, 321, a nisi prius decision, is not helpful. It presents an embarrassing situation in that apparently from the statement in the opinion this court sustained an appeal on questions of law and affirmed an order for alimony *pendente lite.*It is gratifying to remember that the refusal by the Supreme Court of a motion to certify in this case is not conclusive as to its opinion upon the subject of the motion.

In the case of *Book*v. *Book,*59 Wyo., 423, 141 P. (2d), 546, and reported with an elaborate footnote in 167 A. L. R., 352, the Supreme Court of Wyoming had before it the identical question (among.others) herein presented. It appears that the Wyoming statute defining a final order is *pro tanto*identical with our own, Section 12223-2, General Code. That court held that a divorce and alimony action was not a special proceeding. That court took note of *King*v. *King,*38 Ohio St., 370, 167 A. L. R., 357, which was predicated upon the provisions of the Ohio act in 75 Ohio Laws, 726. Apparently the change made in 1910 by bur General Assembly was not brought to the attention of the Wyoming court. That court noted, also, the case of *Reed*v. *Reed,*17 Ohio St., 563, 564, which merely places the action of alimony by reason of the early law as a special proceeding not amenable to general law by virtue of the excluding statute hereinbefore set out.

This court is in full agreement with the conclusions of the Supreme Court of Wyoming in construing the *159law now similar to our own. In the note the cases-pro and con upon this question áre collected.

This court considers this question of sufficient importance to justify consideration hy the Supreme Court and advances this reason for what is possibly an overextended opinion.

An entry may be presented dismissing the appeal on questions of law and providing for certification because of conflict, as herein before noted.

*Judgment accordingly.*■

Ross, P. J., Hildebrant and Matthews, JJ., concur in the syllabus, opinion and judgment..

Ross, P. J., Hildebrant and Matthews, JJ., of the First Appellate District, sitting by designation in the Eighth Appellate District.