(dissenting). — I dissent. The constitution of this state invests the superior courts with “original jurisdiction in all cases ... of divorce and for annulment of marriage.” Section 6, art. 4, Constitution, and the section of the statute quoted in the majority opinion, Bal. Code, § 5722 (P. C. § 4636), authorizes the judges of such courts to make such orders for the expenses of such actions as will insure to the wife an efficient preparation of her case, etc. The constitution gives this court appellate jurisdiction in this class of cases. Its original jurisdiction is limited to certain named writs and “to all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction.” Const., art. 4, § 4. This is an original application to this court for an order for attorney’s-fees, suit money, and alimony in a case pending here upon appeal. Affidavits are filed here in support of the application. In order to allow applications of this character we must determine facts which in most cases will be disputed by original evidence. In other words, this court must exercise original jurisdiction. Reilly v. Reilly, 60 Cal. 624; Hunter v. Hunter, 100 Ill. 477; Kesler v. Kesler, 39 Ind. 153; State *506v. St. Louis Court of Appeals, 88 Mo. 135. No jurisdiction is conferred by the constitution, and even if the legislature has authority to confer it upon this court, which is subject to much doubt, it has not done so nor attempted to do so. It is true while the case is pending here on appeal this court is “possessed of the whole case as fully as the superior court was, and may reverse, modify or affirm the judgment.” This, of course, refers only to the appellate capacity of the court. It is also true “that a divorce case is tried in this court de novo upon the record,” as all equity cases and cases tried by the court without a jury are triable here; but it has not been supposed until now that this court may go outside of that record, receive new evidence, and find facts possibly at variance with the record on appeal, and make or enforce orders which require the exercise of original jurisdiction in advance of the hearing of the case upon its merits.
In my opinion this court is assuming jurisdiction in this matter in violation of the constitution, which confers only appellate or revisory powers upon it. If an order of the trial court granting attorney’s fees, suit money, and alimony may be superseded and thereby the property of a party rendered unavailable, the hardship created thereby is the result of legislation the remedy' for which is in the legislature. Many cases appealed here present hardships which we are powerless to avoid. The mere delay of an appeal frequently prevents a party from receiving money to which he is immediately entitled and which may be necessary for food for himself or family; but he must content himself with interest on his judgment pending the delay. These considerations are not sufficient to authorize this court to usurp legislative functions or to change the plain mandate of the constitution that the jurisdiction of this court is appellate only.
The power of this court to issue all writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction does not, in my opinion, authorize the order made by the majority in this case. That provision applies to a case *507where some action is necessary to compel some officer to perform a legal duty such as preserving the status of the property or of the parties, or of preserving or completing the record, or some other such action. In order that this court may exercise its appellate jurisdiction. No such writ is sought here. It is not claimed that one is proper. I think the majority would probably deny such a motion in any other case than a divorce case, and yet the clause of the constitution under discussion may be applied to any other case upon the same reasoning invoked in this.
Some of the cases cited by the majority sustain the conclusion reached in this case, upon the ground that divorce cases are a class requiring such action; but where the superior court or court of original jurisdiction is authorized to make provision for the wife, and where this court has no original jurisdiction in such cases, it seems to me such cases on appeal should be treated as other appealed cases. In the divorce case out of which this application arises, the trial court entered a fins] judgment and, among other things, awarded the plaintiff $50 per month alimony. The trial court refused to fix the amount of a supersedeas bond on appeal, and this court, upon an application, issued a writ requiring the trial court to do so, and the judgment was superseded. State ex rel. Holcomb v. Yakey, 48 Wash. 419, 93 Pac. 928. This court now makes an original order requiring the payment of the same amount as alimony. This is a fair sample of results sure to follow, and real difficulties are in store if we assume original jurisdiction in this class of cases.
Rudkin and Fullerton, JJ., concur with Mount, J.