OPINION OP
GALBRAITH, J.I concur with the conclusion of the Chief Justice in so far as it is held that equity had jurisdiction of the suit and that the court had the authority to- make the order for alimony pedente lite but cannot agree that that order is appealable or that the writ of prohibition in this case should be made absolute to any extent.
It is true that the: order granting the allowance to the wife is made under the general equity powers of the court but the appeal, if any, is taken under our statute. Sec. 1433 C. L. as amended by Act 40, Session Laws, 1898, reads in part: “Appeals shall be allowed from all decisions, judgments’, orders or decrees of Circuit Judges in Chambers, to the Supreme Court, * * * whenever the party appealing shall file notice of his appeal within five days, and shall pay the costs accrued and deposit a sufficient bond in the sum of fifty dollars conditioned for the payment of the coste further to' accrue in case he is defeated in the appelate court, or money to the same amount, within ten days after the filing of the decision, *570judgment, order or decree appealed from” * * * Filing notice of appeal, paying court costs and filing bond for $50.00, or depositing that sum in cash with the clerk to cover costs in the Supreme Court, if the decision should be adverse to appellant, acts as a stay of proceeding without filing the supercedeas bond required in most jurisdictions, unless the judge for good cause shown should order execution to issue notwithstanding the appeal, as he ma.y do in certain specified cases. Sec. 1435 C. L.
The above statute on appeals has been construed to- permit appeals only from “final” decisions, judgments, orders or decrees. Barthrop v. Kona Coffee Co., 10 Haw. 398. In that case the court held that an order overruling a demurrer to- a bill in equity was interlocutory and not a “final” order or decision and was not appealable.
In discussing the question, Mr. Justice Frear, speaking' for the court, said: “If appeals were allowed from all such rulings it would be in the power of a defendant, even in a very clear case against him, to> keep the case oscillating between the original and appellate courts almost indefinitely, to- the great expense and annoyance and perhaps even practical denial of justice to the plaintiff, to say nothing of the annoyance to the courts and the occupation of their time with trivial matters. * * * * Our statute is such that we cannot discriminate between interlocutory decisions so as to allow appeals on important occasions and not on other occasions,” p-. 401.
The force of this decision is recognized by the majority but it is sought to avoid it by holding that the order made allowing temporary alimony and counsel fees pedente lite is a final order on the ground that it finally disposes of the matter to which it refers. Is it any more final than the order overruling a demurrer or does it any more finally and permanently dispose of the matter raised than the decision on a demurrer? Clearly not.
An interlocutory order is defined “to be one made between the commencement and end of a suit or action which decides some point or matter, which, however, is not a final decision of the matter in issue,” Bouvier. The “matter in issue” in this *571case was the power of the court below to compel the husband to support his wife while living apart from him and induced to so live by his wrongful conduct. The order allowing alimony pedente lite and counsel fees was made between the “commencement and end of the suit,” was an incident thereto and did not dispose of the “matter in issue” in the cause. Nor was it a final order in the sense that the court could not modify, or revoke it, on application, at any subsequent time. It was clearly an interlocutory order or decision and not appealable under our statute.
The cases cited in the majority opinion to sustain the conclusion that the order is final and appealable base such holding principally on the grounds that the judgment is a money judgement and that to deny an appeal would be to- authorize the taking of the husband’s property without the right of review and that “property rights” are of such a sacred nature that property must not be passed from the husband to the wife at the discretion of one Judge however great or good he may be. Blake v. Blake, 80 Ill. 523; McKennon v. McKennon, 10 Okla. 400. These cases overlook the very important point that the statute, and the common law in the absence of statute, imposes the duty on the husband, by reason of the marriage relation, when he has turned his wife adrift and without fault on her part compels her to live separate and apart from him, to supply her with necessaries, and if he fails to do this and she is compelled to sue for them in the courts then he is liable for her reasonable counsel fees. These are “legal rights” conferred on the wronged wife by law. Temporary support is allowable to meet the “immediate necessities of the wife” (Call v. Call, 65 Me. 407). It seems to me that these rights given the wife are equally sacred and entitled to the protection of the courts with the property rights of the husband and should not be permitted to be frittered away by appeal. The Circuit Judge in making the order merely announced the judgment of the law on the facts.
It is also claimed that an appeal ought to' be allowed for the reason that the husband could not “get the money back” if the order should be found to have been wrongfully made. Where, *572as in this case, tbe marriage is admitted, and tbe allegations of tbe bill confessed by demurrer, tbe obligation to support tbe wife is fixed on the husband by law and there does not seem to be any possible circumstances under which he would be entitled to recover the amount of the allowance if paid. The only thing he can or could have to complain of on appeal is as to the reasonableness of the allowance. The error in this, if any, could be reviewed and corrected on the appeal from the final decree in the cause without injury or impairment of the rights of either party. There is no claim made on behalf of the husband that the allowance made by the Circuit Judge was unreasonable or excessive. The husband’s salary is $375 per month. The allowance to the wife was $150 per month and $250 as her counsel fees.
If our statute on appeals was similar to* that in California, Montana, Oklahoma and possibly Colorado and Illinois in the requirement that the husband should file a supercedas bond conditioned to pay the allowance if affirmed by appellate court, the cases cited from those jurisdictions in support of the conclusion of the majority would have much greater force. The single reason that the husband under our statute can appeal, if at all, without paying or securing the amount of the allowance even if ap>proved by appellate court ought to be absolutely controlling and impel tlie court to deny an appeal where one is not clearly allowed by statute. I'he denying an appeal in this ease- does not withhold from the husband a “legal right” for the reason that he has no right to an appeal if none is given by statute, while the wife under the facts alleged in the bill and admitted by the demurrer has a “legal right” to expenses and support given by the statute which may be denied her altogether by allowing the appeal. To “make law” by construing the statute to allow an appeal in this case is to place it in the power of the husband, as has been so well said, “to keep tbe case oscillating between tbe original and appellate courts almost indefinitely, to the great expense and annoyance and perhaps even practical denial of justice to the plaintiff” and will also permit a husband who wants to void *573iiis marital obligations and to turn his wife over to the tender charities of her friends to do so completely. Pending the appeal he may give away his property or send it ont of the territory or he may remove himself from the jurisdiction and leave his wronged life partner with her order for alimony pendente lite and expense money, affirmed by the appellate court and witb no means of enforcing the same.
It seems clear to me that the court ought not to make the writ absolute in any particular. To do so it is necessary to go altogether beyond the prayer of the petition for the writ. The prayer reads “’Wherefore your petitioner prays that a. writ of prohibition may he issued ont of this Honorable Court addressed to the said Honorable George D. Gear, Second Judge of the Circuit Court of the Eirst Circuit, ordering and forbidding him to take cognizance of the said cause, and to the said Eleanor G. Dole forbidding her and her attorneys or any one on her her half from prosecuting the said cause before the said Honorable George D. Gear, Second Judge as aforesaid, or any Judge of said Court, until the further order of this Court.” The prayer only asks for the writ against proceeding in “’said cause.” “Said cause” is the suit fox maintenance, the principal cause of action, not the incidental order allowing temporary alimony and counsel fees. The court finds that the petitioner is not entitled to the writ in “said cause” but gives so:nething not asked for by making the wiit absolute as to an incidental matter.
There is no doubt that the coitTt below was proceeding in the contempt matter on the theory that no appeal could he laken from the order allowing temporary alimony and I submit that under the law it was justified in so proceeding. Since the majority has declared that it was proceeding on a wrong theory and that an appeal lies from the' order there is no suggestion that the Circuit Judge will refuse to acknowledge and follow the law as so declared and that it would hold a return filed by the respondent that he had perfected an appeal from said order as a sufficient showing for failure to comply therewith and order his discharge.
Making the writ absolute in any particular is entirely uncalled *574for and is unauthorized by any of. the authorities cited in the opinion and it is dignifying the trivial allowance of one hundred and fifty dollars and two hundred and fifty dollars by the use of a “prerogative writ” where the ordinary proceeding of appeal gives perfect protection to every right the respondent can have in the premises.
The order ought to be discharged and the writ dismissed.