Price v. Price ( 1859 )

Brinkerhopp, C. J.

Henry Price filed his petition, on the 13th of August, 1857, in the common pleas of Trumbull county, against his wife, Phebe, for a divorce from the bonds of matrimony. The case was finally heard upon its merits in that court, and the petition dismissed. The petitioner thereupon gave notice of his intention to appeal the ease to the district court, and filed his bond for appeal, to the acceptance of the clerk, in the amount fixed by the court. At the August term, 1858, of the district court, counsel for the defendant moved to dismiss the appeal, on the ground that the case is not, under the statute, appealable. And this motion was reserved for decision here.

The question made by the motion arises under the fourth section of the act of April 15, 1857, “ to amend the *act concerning divorce and alimony.” 54 O.'L. 131. That section, as it stands printed, appears at first blush to be somewhat obscure. This apparent obscurity arises mainly, if not entirely, from its defective and improper punctuation. The section, when properly punctuated, reads thus:

“Seo. 4. That section seventeen of said act be amended so as to read as follows: Sec. 17. In all cases under this act in which the court of common pleas shall dismiss the petition (except on the final hearing of the case on its merits); in cases in which the court shall give judgment in favor of the wife for alimony alone, without granting a divorce; in cases under section fourteen of said act, and in cases where judgment is rendered for both divorce and alimony; either party may appeal from any final judgment oi- order, to the district court as in other cases; provided, that in.cases under se^ tions one and two of this act, and fourteen of the act to which this is amendatory, and in all other cases under this act when the wife shall appeal, she shall not be required to give bond; provided, also, that in eases where judgment .is rendered for both divorce and alimony, the appeal shall apply only to so much of the judgment as relates to the alimony.”

Prior to the enactment of this act no case for divorce, or for divorce and alimony, was appealable. Appeals in such cases are now allowable only by virtue of the fourth section above given; and by the words of the section included in parentheses, this case is clearly excepted from its provisions.

Appeal dismissed.

Scott, Sutlifp, Peck, and G-holson, JJ., concurred.