Harron v. Harron

HARRISON, J. Motion to dismiss the appeal. Judgment was rendered in this action in favor of plaintiff for a divorce from the defendant, and, the defendant having appealed therefrom, the superior court made an order requiring him to pay to the plaintiff the sum of one hundred dollars as and for counsel fees, and forty dollars as and for costs, to enable the plaintiff to contest motion for a new trial in said court. From this order the defendant has appealed. The plaintiff moves to dismiss the appeal upon the ground that this court has no jurisdiction of the appeal by reason of the fact that the value of the property in controversy—that is, the amount of money required by the order to be paid—is less than three hundred dollars.

“The supreme court shall have appellate jurisdiction in all cases in equity except such as arise in justices’ courts; also in all cases at law .... in which the demand, exclusive of interest or the value of the property in controversy, amounts to three hundred dollars.” (Const., art. VI, sec. 4.) Under this provision of the constitution this court has appellate jurisdiction in “all cases in equity,” irrespective of the value of the property in controversy. It is only in a case at law that the value of the property forms an element in determining its jurisdiction; and it was held in Sharon v. Sharon, 67 Cal. 185, that the jurisdiction of this court in an action of divorce comes from the fact that such action is a case in equity. As the appellate jurisdiction of this court extends to all eases in equity, it also includes all questions in a case in equity upon which a review of the action of the superior court may be had.

The order appealed from is a special order made after final judgment, but it is none the less an order made in a case in equity, and is equally within the appellate jurisdiction of this • court as is the judgment itself. Such an order is made appeal-[510]able by an express provision of statute (Code Civ. Proc., sec. 939), and the jurisdiction to entertain the appeal is not dependent upon the amount of money named in the order, any more than it is determined by the amount involved in an action for the foreclosure of a mechanic’s lien, or for a street assessment.

In Langan v. Langan, 83 Cal. 618, the court dismissed an appeal from an order allowing one hundred and fifty dollars as counsel fees, assigning as the reason therefor that the amount in dispute was too small to give the court jurisdiction; but it does not appear that this provision of the constitution was presented to the court or considered by it. We are satisfied, however, that the reason there given is not justified by a proper construction of the provision, and, as no rights have grown up by reason of the decision, we feel authorized to disregard it in favor of the proper construction to be given to the constitutional provision.