The order to show cause why all proceedings upon the order of the court below for the payment of alimony and counsel fees should not be staid, pending the appeals from the order and judgment, and the motions to have said appeals dismissed, devolve upon us the consideration and determination of the following questions:—
1. Has this court appellate jurisdiction in actions of divorce?
2; Can the order for the payment of alimony and counsel fees be reviewed on an appeal from the judgment?
3. Can this court entertain jurisdiction of the direct appeal from that order?
Although this court has, during a period almost coeval with its existence, heard and determined appeals in divorce cases, its jurisdiction to do so has not until now been sharply challenged. In Conant v. Conant, 10 Cal. 250, the appellate jurisdiction was disputed only in cases in which no question of property was involved. With that exception, the complete appellate jurisdiction of this court in such cases appears to have been uniformly acquiesced in.
The first Constitution conferred appellate jurisdiction on this court in all cases in which the matter in dispute exceeded $200; the next, “ in all cases in equity,” and the present Constitution likewise confers appellate jurisdiction on this court “ in all cases in equity.” Appellate jurisdiction in other enumerated cases was and is conferred, but the jurisdiction of this court of an *188action of divorce, in our opinion, depends on its being, in this State, at least, a case “ in equity.” The first Constitution prohibited the granting of divorces by the legislature, but did not confer the power to grant them on any court, unless the conferring of “jurisdiction in law and equity in all civil cases,” on the District Courts, conferred it on those courts. And in the earliest reported case of divorce to which our attention has been directed, the first pleading on the part of the plaintiff is denominated, in the opinion of the court, “ a bill filed for a divorce.” (Kashaw v. Kashaw, 3 Cal. 312.) And in Fuller v. Fuller, 17 Cal. 605, the court denominates the complaint “a bill for divorce.” There was then, as now, but one form of civil actions in this State, and the first pleading on the part of the plaintiff was then, as now, “a complaint.” In equity cases, however, but in none other, so far as we are advised, the courts of this State sometimes, and not infrequently, refer to the first pleading on the part of the plaintiff as “a bill.”
Under the first Constitution, as before stated, the appellate jurisdiction of this court embraced all cases, when the matter in dispute exceeded $200. ¡No distinction was made between cases in equity and at law. But in Conant v. Conant, 10 Cal. 249, this was construed to mean what is clearly expressed in subsequent Constitutions, viz., “ appellate jurisdiction in all cases in equity,” and in certain enumerated cases at law. The court, Field, J., delivering the opinion, said: “ It never could have been the intention of the framers of the Constitution to deny to the higher courts both original and appellate jurisdiction in that large class of cases where the relief sought is not susceptible of pecuniary estimation.”
In Lyons v. Lyons, 18 Cal. 447, the court filed no findings of fact or conclusion of law, and it was contended by the appellant’s counsel that it constituted a sufficient ground for the reversal of the judgment. But this court, Cope, J., delivering the opinion, said: “ This is a suit in equity, and the only error assigned is that there are no findings to support the judgment.” He then cites Walker v. Sedgwick, 5 Cal. 192, in which it was held that the statute which required findings to be filed did not apply to cases in equity.
These cases all arose and were decided before any change had *189been made in the original Constitution. And when revised it clearly expressed what it had before been construed to mean. From the time of that revision down to the date of the adoption of the present Constitution this court entertained appeals in divorce cases, and its jurisdiction to do so does not appear to have been questioned. And we are bound to presume that when the framers of the present Constitution literally copied from the late Constitution the clause defining appellate jurisdiction of this court in cases in equity, they knew how it had been construed, and intended that it should thereafter be construed as it theretofore had been. “It is a safe rule of construction that, when framing the organic law of the State, the convention thought proper to borrow provisions from the Constitutions of other States, which provisions had already received a judicial construction, they adopted the provisions in view of such construction and acquiesced in its correctness.” (People v. Coleman, 4 Cal. 46.) A fortiori, when a clause in an earlier Constitution, after having received a judicial construction, is copied into a later one of the same State.
It is, however, contended, that while there is no difference between the clauses of the late and present Constitutions, which define the appellate jurisdiction of this court in equity cases, its jurisdiction in divorce cases, if it ever had any, is taken away by the clause in the present Constitution which defines the jurisdiction of Superior Courts, and which expressly confers on them original jurisdiction “ in actions of divorce.”
In support of that theory it is said that the common law of England prevails here, except so far as it is superseded or modified by some statute or fundamental law of our own, and that at common law no court could grant a divorce a vinculo, Parliament alone having that power. Therefore it is claimed that no court, in the absence of some statutory or constitutional provision expressly conferring that jurisdiction upon it, can exercise original or appellate jurisdiction in divorce cases; that in analogy to the procedure in England the legislatures of the several States of the United States, in the absence of any statutory or constitutional provision on the subject, would possess the exclusive power to grant divorces a vinculo, in their respective States; and that this gives great significance to the action of *190the late constitutional convention, in conferring upon Superior Courts original jurisdiction of actions “ of divorce,” eo nomine, and in omitting any express mention of them in the clause which defines the jurisdiction of this court. The effect claimed for this is that it confers on the Superior Courts a jurisdiction which their predecessors the District Courts exercised under Constitutions which did not expressly confer on them jurisdiction in divorce cases; and deprives this court of a jurisdiction which it exercised unchallenged for fifteen years, basing its right to do so upon a constitutional provision, of which a literal copy may be found in the present Constitution.
It is true that divorces a vinculo matrimonii in Great Britain were, at least fora longtime prior to 1858, granted by act of Parliament exclusively; but it is not quite so clear that such divorces were not at one time granted by the High Court of Chancery, which borrowed its jurisdiction from the esquitas and judicial powers of the Roman magistrates. In Wightman v. Wightman, 4 Johns. Ch. 343, Chancellor Kent says: “All matrimonial and other causes of ecclesiastical cognizance belonged originally to the temporal courts (vide the case of Legitimation and Bastardy, Sir J. Davis' Rep. 240, aud his argument in the case of Praemunire, 273); and when the spiritual courts cease, the cognizance of such causes would seem as of course to revert to the lay tribunals.” From the argument in the Prcemunire case above cited we extract the following paragraph: —
“First, then, let us see when this distinction of ecclesiastical or spiritual causes from civil and temporal causes did first begin in point of jurisdiction. Assuredly for the space of 300 years after Christ this distinction was not known or heard of in the Christian world. For the causes of testaments, of matrimony, of bastardy, and adultery and the rest, which are called ecclesiastical or spiritual causes, were merely civil and determined by the rules of the civil law, and subject only to the jurisdiction of the civil magistrate as all civilians will testify with me.”
Gibbon says: “ The magistrates of Justinian were not subject to the authority of the church; the emperor consulted the unbelieving civilians of antiquity; and the choice of matrimonial laws in the Code and Pandects is directed by the earthly motives of justice, policy, and the natural freedom of both sexes.”
*191It is clear, therefore, that in Roman jurisprudence divorce cases were heard and determined by the civil magistrates, who had jurisdiction of cases both at law and in equity as we now distinguish them.
“In the reign of Richard II., the barons formally declared that they would not suffer the kingdom to be governed by the Roman law; and the common-law judges prohibited it from being any longer cited in their courts. This action was certainly a mistake, and it produced an opposite effect from the one intended. The Roman law instead of being banished was simply transferred to another court which was not governed by common-law doctrines. As the law courts cut themselves off from all opportunity of borrowing equitable principles from this foreign source, the necessity arose for a separate tribunal in which those principles could be recognized. It therefore followed immediately upon this prohibition that the hitherto narrow jurisdiction of the Court of Chancery was greatly increased, and extended over subject-matters which required an ample and constant use of Roman law doctrines.” (1 Pomeroy’s Eq. 20.) It would not necessarily follow from this that the Court of Chancery succeeded to all the powers of the Roman magistrates, except those which the common-law courts were administering; but it does seem to us that the Court of Chancery might, unless prohibited by act of Parliament, have exercised jurisdiction in matrimonial as well as in other causes. And there is some evidence of its having done so. “Tothill, in his transactions of the Court of Chancery, states that there are on the rolls of the court two decrees for divorce (but of what description he does not mention) in the time of Henry VIII., and two in the time of Elizabeth, after verdicts in the Court of Queen’s Bench, I presume for adultery. I have been unable to discover them even with the help of Mr. Munro. It is not unlikely, however, that the Court of Chancery wider its clerical chancellors exercised jurisdiction to decree a divorce a vinculo matrimonii.” (1 Spence’s Eq. 702.) The first edition of Tothill’s book was published in 1649, and as he is styled a “ famous lawyer,” it is highly probable that what he relates as having occurred not long before the time in which he lived actually took place.
Conceding, however, the fact to be otherwise, it is quite clear that the civil courts did not decline such jurisdiction because it *192- had been conferred on the spiritual courts. If those courts ever claimed the power, they never, after a date long anterior to the .Reformation, attempted to decree a divorce a vinculo matrimonii. For more than 200 years, at least prior to a recent date, when the divorce court was established in England, marriage was there treated as a status or condition which was indissoluble except by death or act of Paliament.
“ But the marriage status is entered into through the door of an ordinary contract; and for avoiding ordinary contracts, the jurisdiction of equity extends to all questions of fraud, mistake, duress, and lunacy. Hence, when an impediment of this sort intervenes, and jurisdiction for nullity has been conferred on no court by statute, our equity tribunals will entertain the complaint and declare the marriage void. Equity in England will not do this, because formerly there was an express jurisdiction in the ecclesiastical courts, and now there is in the divorce courts.” (2 Bishop on Marriage and Divorce, § 291.)
How, as before the statute permitting divorces by courts, the contract is to assume the duties and obligations of matrimony. The contracting parties cannot limit those duties or obligations, nor expressly provide that their binding force shall last for a period other than life. But the duties and obligations are assumed only by the mutual consent of the parties, and marriage itself is often spoken of by law-writers and judges (without material inaccuracy) as a “civil contract.” Assuming, however, the marital status, into which the parties enter through a contract, is itself more than or different- from ordinary contracts, yet when the legislature of this State provided that the relations between husband and wife, previously indissoluble, might be terminated as the result of a judicial proceeding, the nature of the status was, to that extent, modified, and it assumed the character of a contract, from future compliance with the obligations of which the parties cannot indeed release each other, but from which they may be relieved by the decree of an appropriate tribunal. Under the statute the marriage state is subject to termination by judicial decree. This element of possible disseverance affects the contract because the parties marry in view of a possible divorce, and the decree of divorce operates on the contractual relations by relieving the spouses of the duties they have *193assumed towards each other by or through a contract. The power to divorce, which, save for the prohibition of the Constitution, could have been exercised by the legislature, has become judicial. Courts of equity have jurisdiction to decree or declare dissolution of copartnerships, and of other like contracts entered into to continue indefinitely, where there are mutual and1 Continuing conditions. It would seem there could be little doubt that, when marriage has been deprived of its quality of indissolubility, and no special tribunal has been created for divorce cases, courts of equity should assume cognizance of such actions. Courts of equity have always exercised an analogous jurisdiction; their modes of procedure are adapted to the inquiries involved, and their decrees are more specific and flexible than the ordinary law judgments.
It is therefore not surprising that this court should have uniformly'regarded actions of divorce as “cases in equity.”
The fact that it did so regard them is too clear to admit of .doubt, and that being so, its reasons for so regarding them are not now important. Our position is that for a period of thirty years next preceding the adoption of the present Constitution, actions of divorce were uniformly held to be “cases in equity,” and that the framers of the present Constitution were aware of that when they conferred on this court jurisdiction “in all cases in equity.”
On the other hand, it is contended that the framers of the present Constitution manifested their intention to effect a material change in that respect by conferring original jurisdiction on the Superior Court in actions of divorce eo nomine, and omitting to confer appellate jurisdiction in divorce cases eo nomine on this court.
But it conferred no other or greater jurisdiction on the Superior Courts in divorce cases than their predecessors the District Courts had exercised from the first under Constitutions in which no special mention was made of such cases. And from 1873 down to the date of the adoption of the present Constitution there was no statute in force which expressly conferred such jurisdiction on the late District Courts. The language of the Code was and is that, “ marriage may be dissolved: —
“ 1. By the death of either of the parties; or
*194“ 2. By a divorce adjudged by a court of competent jurisdiction.”
To ascertain wliat court had “competent jurisdiction” it was necessary to consult the Constitution, which simply declared that “the District Courts shall have original jurisdiction in all cases in equity,” etc. Why original jurisdiction in actions of divorce was not expressly conferred by the Code, as it had previously been by statute, on the District Courts, we will not attempt to explain. But from January 1, 1873, down to the time when the present Constitution went into effect, the District Courts derived whatever jurisdiction they had in divorce cases from the same source that this court has always claimed to derive its jurisdiction in such cases, viz., the Constitution, hi or can we satisfactorily explain why the words “of divorce and for the annulment of marriage,” which are not to be found in either of the earlier Constitutions, were inserted in the present Constitution. They give the Superior Courts no greater or other jurisdiction in such cases than their predecessors, the District Courts had exercised under both of the former Constitutions, neither of which contained those words.. And we cannot adopt the suggestion that they were inserted in the clause defining the original jurisdiction of the Superior Courts, for the purpose of curtailing the appellate jurisdiction of this court. That is not the way in which the framers of Constitutions and laws express their intentions. If the intention had been to take from this court the jurisdiction which it had'previously exercised in divorce cases, the very clause, under which, for a period of seventeen years, it had claimed such jurisdiction, would not have been copied verbatim.
But while entertaining no doubt of the appellate jurisdiction of this court in divorce cases, pure and simple, it is at least pertinent to remark that this is not simply an action of divorce. Section 78 of the Civil Code provides: “If either party denies the same,, or refuses to join in a declaration thereof, the other may proceed by action in the Superior Court to have the validity of the marriage determined and declared.” The first count of the complaint or separate statement of a cause of action herein, after alleging in three paragraphs, the residence of plaintiff, her marriage with defendant, their cohabitation as husband and *195wife, and that on the 25th of August, 1880, they jointly made a written declaration of marriage, proceeds to aver that, about the 21st of November, 1881, “the defendant demanded of plaintiff a surrender to him of said declaration of marriage, and threatened plaintiff with personal violence in case she refused to comply with said demand; refused to recognize his said marriage with plaintiff, drove the plaintiff away from him, and refused to live or cohabit with her unless she complied with his demand; and the defendant, for more than one year last past, has not lived with plaintiff, nor has ho requested her to return to or live with him, thereby wilfully deserting the plaintiff.” The answer denies the marriage and execution of the declaration. The prayer of the plaintiff is that “her marriage with said defendant may be declared legal and valid, and that she may be divorced,” etc. If the plaintiff had utterly failed to prove any cause for divorce she would have been entitled to a decree declaring the alleged marriage valid, if the evidence established the fact of marriage. An action to have the validity of a disputed marriage determined and declared, under section 78 of the Civil Code, is in its nature a suit in equity. Such an action is not a “special proceeding,” for even if it should be conceded that the right was newly created, no special proceedings for enforcing it are provided by the statute. The judgment herein in effect responds to the prayer of the complaint and declares that the alleged marriage was a valid marriage. From that portion of the decree, in any view of the case, an appeal lies.
If the order for the payment of alimony and counsel fees is in the nature of a final judgment, it is appealable. It certainly possesses all the essential elements of a final judgment. Nothing remained to be done except to enforce it, and for that purpose an execution might issue and be proceeded on, as if the judgment had been rendered in an ordinary action for the recovery of a specific sum of money. Although the pendency of an action for divorce constituted the basis of the order, it was no part of the relief demanded by the plaintiff in her complaint. She might at any time during the pendency of the action have applied to the court for such an order. And if granted it would not be affected by subsequent proceedings in the action. Its validity would not depend in any way on the result of the action. If *196the court had afterward found that the marriage relation never existed between the parties, that would not have affected the order for the payment of temporary alimony. It would have afforded good ground for vacating it. It was to all intents and purposes, “a final judgment entered in an action.” Quite as much so as the decree of divorce in this case in which “the question of property” is reserved for future consideration, “ with leave to the plaintiff to apply upon the coming in of the referee’s report .... for a future and final decree.” But it has not been suggested that the decree appealed from is not a final judgment in the action. It is final upon the questions adjudicated in it, and the order for the payment of temporary alimony is a final judgment upon all the questions adjudicated in it.
A final judgment is not necessarily the last one in an action. A judgment that is conclusive of any question in a case is final as to that question. The Code provides for an appeal from a final judgment, not from the final judgment in an action. In some of the States the question has been directly passed upon by the courts, some holding that such orders are, and others til at they are not appealable. Of course, it rarely happens that the constitutions and statutes relating to appeals are precisely alike in any two States. But the reasons given by the courts for holding that appeals might or might not be taken from such orders in their respective States are worthy of consideration.
In Lochnane v. Lochnane, 78 Ky. 468, the court says: “That an appeal may be taken from a decree making an allowance to support the wife pending a suit for divorce cannot be questioned. It possesses all the essential elements of a final judgment. It may be enforced by rule or execution, and is in every respect independent of the final determination of the court as to the rights of the party in regard to the question of divorce.” In Hecht v. Hecht, 28 Ark. 92, it was contended by the appellee that, inasmuch as the original suit between the parties was still pending in the Circuit Court, no appeal would lie to the Supreme Court from an order granting alimony and counsel fees until a final decree in the suit had been rendered. The court said: “Section 4, article vii., of the Constitution provides, that final judgment in the inferior courts may be brought by writ of error or by appeal into the Supreme Court, in such manner as may *197be prescribed by law. It is not necessary for us, in the determination of this case, to construe this and section 15 of the same article. The order or judgment of the court is not, strictly speaking, an interlocutory one. While it may be true that a petition for alimony and attorneys’ fees could not be brought as a separate and independent suit, yet it is also true that such an application and order for an allowance pendente lite, especially such a one as is made in this case, is, so far as it affects the rights of this appellant in its consequences, wholly independent of his suit for divorce. This is a definitive judgment, from which the appellant can have no relief by the final decree, even though it should appear that injustice had been done to him. By due process on the execution the money will have been collected and paid over to the parties in whose favor it is awarded, and its recovery will have passed beyond the power of the court. It is true that the allowance of alimony and other necessary costs is discretionary with the court trying the case, and will be interfered with by this court only upon the clearest proof that there has been a palpable abuse of that discretion. Yet when there has been such abuse which affects the substantial rights of a party, we are of the opinion that he can have redress by appeal to this court.”
In Golding v. Golding, 74 Mo. 123, an appeal was taken to the Supreme Court from the judgment of the St. Louis Court of Appeals, affirming a judgment of the Circuit Court of St. Louis County granting a decree of divorce to plaintiff, and allowing to her, as alimony, the gross sum of $15,000. The Supreme Court had no jurisdiction in divorce cases, when taken there by appeal from the St. Louis Court of Appeals, to pass upon the question whether the decree granting a divorce was justified by the evidence, and it was contended for the respondent that that provision of the Constitution which permitted appeals in cases where the “amount in dispute exclusive of costs exceeds $2,500,” had no application, “because the divorce was the matter in dispute, and the alimony was but an incident to the dispute.” But the appellate court held against the respondent on the point and reviewed the award of alimony.
In Blake v. Blake, 80 Ill. 532, the Supreme Court of that State in ruling upon a motion exactly like the one now under *198consideration said: “ The question raised is one that has never been passed upon by this court, but upon first impression we are of opinion the appeal will lie. It is a money decree, is for a specific sum, and is payable absolutely. Ho execution has been as yet awarded, but the court has the undoubted authority to award an execution, or, if payment was wilfully and contumaciously refused, the decree might be enforced by attachment as for contempt, or payment might be coerced by sequestration of real or personal estate. By one mode or the other the decree could be enforced, and if defendant has property, it could, in some way consistently with the practice in Courts of Chancery be subjected to its payment.- Such a decree does not seem to us to be merely interlocutory. It is more in the nature of a final decree, and if no appeal lies, this case affords an instance of a money decree against a party from which no relief can be had, no matter how unjust or oppressive. This ought not to be. It is no answer to this position to say, defendant can have this decree against him reviewed on appeal or error, after final decree in the original cause. Of what avail would that privilege be to him then? The litigation might be protracted, and years elapse before any final decision could be reached. In the meantime, he has been imprisoned for disobedience to the decree, or his property under process of law beén subjected to the payment of the sum decreed. Hor does the fact an appeal is allowed impose any hardship not incident to other money decrees from which appeals may-be prosecuted. On the theory alimony is for the immediate benefit of the wife, to enable her to prosecute or defend her suit against -her husband on terms of equality, the only serious result would be to delay the litigation until the propriety of the decree for temporary alimony and solicitors’ fees could be determined. in the appellate court. On the contrary, if an appeal should be denied, it might, subject defendant to very great hardships in many cases, as the sequel will show. It is apprehended there can be no decree against a party that will work a deprivation of his property or liberty, from which no appeal or writ of error will lie. Such is the decree against defendant. Under it he may be deprived of his liberty, or his property subjected to levy and sale.”
*199. The statute then in force in that State in relation to appeals was not substantially different from our own.
The reasoning of the Illinois court becomes much stronger when applied to the present case, where the main controversy between the parties is the question of marriage. It is, of course, indispensable to the granting of alimony at all, that the relation of husband and wife, in fact, exist. We are of opinion, therefore, that the order in question is in its legal effect a judgment and appealable as such. Indeed, the very section of the Code of Procedure under which execution was directed to be issued placed such order upon the same plane as a judgment. It reads: “ Whenever an order for the payment of a sum of money is made by a court, pursuant to the provisions of this Code, it may be enforced by execution in the same manner as if it were a judgment.” And by section 942 of the same Code it is provided that “if the appeal be from a judgment or order directing the payment of money, it does not stay the execution of the judgment or order, unless a written undertaking be executed on the part of the appellant,” etc. Such undertaking was executed in this case, and wrought a stay of proceedings under the order.
As the order for the payment of alimony and counsel fees is an appealable order, it cannot be reviewed on the appeal from, the judgment decreeing a divorce.
Motions to dismiss the appeals from the judgment and from the order for the payment of alimony and counsel fees are denied. And it is ordered that all proceedings upon the last named order and the judgment be stayed pending said appeals.
Ross, J., Myrick, J., Thornton, J., and McKinstry, J., concurred.