(dissenting). I am unable to agree either in the reasoning or the result of the foregoing opinion. I believe that the reasoning of my associates proceeds upon an erroneous view, if not an entire misapprehension, of the purpose for which temporary alimony is allowed by our statute; and that the result announced presents an instance in which a rule of practice well settled, and generally salutary in its application to a proper case, is in this case so misapplied as to be productive of great hardship, and possibly grave injustice. Under our law there is a wide and radical difference both in the purpose and the procedure necessary to an allowance of temporary and permanent alimony. The district court, which seems to be the only court of this state having jurisdiction of an action in divorce, is empowered to allow temporary alimony by section 4071, Rev. Codes 1905, in words as follows: “While an action of divorce is pending, the court may in its discretion require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action.” The last clause of this statute has reference unquestionably to suit money, or attorney’s fees, which is always regarded as a specific part of the temporary alimony the court is authorized to allow, and is granted under the same conditions. 2 Nelson on Divorce and Separation, section 875.
Authority to allow permanent alimony is given by another section of the statute. “When a divorce is granted for an offerne of the husband the court may make such suitable allowance to the wife for her support during her life or for a shorter period as the *527court may deem just; and when such divorce is granted for the offense of either the husband or wife, the court may compel such husband to provide for the maintenance of the children of the marriage, having regard to the circumstances of the parties respectively; and the court may from time to time modify its orders in these respects.” Section 4073, Rev. Codes 1905. It is therefore apparent that, from its very nature, premanent alimony cannot be granted until, not only the matrimonial status and full property rights, or, in other words, the entire merits of the controvery between the parties, have been investigated and a divorce decreed. As this permanent allowance can be awarded only after all the issues of the case are determined, it is necessarily a part of the final decree. It arises out of the relation of the parties as determined by the judgment of the. court in the case, and becomes operative only after the ordinary obligations of matrimony are dissolved. It is readily perceived, however, that an award of temporary alimony becomes necessary and operative at a different time, and involves considerations of an entirely different character. The principle on which it is granted is inherent in the matrimonial relation, and the award is in furtherance of the obligations of that relation and not as a substitute therefor. It is called for as soon as the wife is subjected to the expenses, attendant upon an action of divorce. It may be allowed “while the action for divorce is pending,” and is intended, among other things, for the purpose of enabling the wife “to prosecute or defend the action.” The right to this allowance accrues to the wife at the beginning of the action and ceases upon the entry-of a decree; for as noted above, after the determination of the rights of the parties by means of the final judgment, the property rights incidental to the new relation of the parties are governed by an entirely different statute.
As our statute authorizes an allowance of temporary alimony before judgment, and at any time during the pendency of the suit, it follows by necessary implication that this allowance must be made by order. It is assumed that matrimonial cohabitation has ceased before the beginning of an action for divorce, and that during its pendency the wife will be without means of maintenance or support, for her children unless such means can be provided by orders of the court summarily enforced. In order that she may present her cause of action, or defense as the case may be, she must have the necessary means to secure the attendance of witnesses, and *528to pay the attorney who conducts her case. If these means may be withheld until the entry of judgment or until the determination of an appeal, which may extend over a period of months or even years, she will suffer great hardship, and in many cases the entire end and purpose of a statute providing for an allowance of temporary alimony will be defeated.
Influenced by considerations such as the foregoing, the cases are in practical agreement that an award of temporary alimony must be made by order of the court, and is not properly included in the final judgment. Williams v. Williams, 53 Hun. 636, 6 N. Y. Supp. 645; Straus v. Straus, 67 Hun, 491, 22 N. Y. Supp. 567; Mercer v. Mercer, 73 Hun. 192, 25 N. Y. Supp. 867; Storke v. Storke, 99 Cal. 621, 34 Pac. 339; and Earle v. Earle, 75 Ill. App. 351. Not only is this allowance entirely extrinsic to the, purposes of the action and dependent upon considerations different from those out of which the judgment proceeds, but the ordinary process of execution as applied lo judgments is entirely unsuited to the enforcement of such allowance, and, unless other and more summary means are adopted, a wife’s action or defense, however meritorious, may lapse at any time through failure of sustenance. It follows from these considerations that an order for temporary alimony is never properly a part of a final decree. Where the court sees fit to include such provision in its decree it is void, or, at best, irregular. Sharon v. Sharon, 75 Cal. 1, at page 38, 16 Pac. 315. In any event, when entered in the decree it should not be regarded as other parts properly included; but should still be treated as a temporary order, the enforcement of which, notwithstanding supersedeas of the decree, remains with the district court. Delor v. Donovan, 157 Mich. 587, 122 N. W. 196. The order making such allowance is appealable, and if the husband is aggrieved thereby there is the most abundant opportunity for review. 2 Nelson on Marriage and Separation, section 875; Traylor v. Richardson, 2 Ind. App. 452, 28 N. E. 205.
I am unable to find any case, or in fact, any recognized authority, which holds “that provisions in a final decree fixing the attorney’s fees in divorce cases in favor of the' wife are a paid of the judgment and are not independent thereof,” and cannot, therefore, accept the holding of the majority opinion that such principle “is well settled.” The principle announced by such authority as bears upon this point is rather the reverse of this, and to the effect that “the power of the court to order and enforce an allowance for *529alimony pendente lite, although an adjunct of the action Of divorce, is an independent proceeding standing upon its own merits, and in no way dependent upon the merits of the issues in the divorce suit or in any way affected by the final decree upon those merits. It grows, ex necessitate rei, out of the relations between the parties to the controversy, and has nothing to do with the merits of that controversy.” State v. Seddon, 93 Mo. 520, 6 S. W. 342; Dawson v. Dawson, 37 Mo. App. 213.
It is true that such orders are reviewable upon the appeal from the judgment. They are thus reviewable, however, only as interlocutory orders, and not as part of the judgment. If the husband is aggrieved by such order it is his privilege to appeal therefrom at the time the order is entered, or in case the time for appeal from the order has not run, and he has not complied therewith at the time of the entry of judgment, he may appeal from the judgment, and in that connection ask for a review of the order. If he does not appeal, however, or, if he voluntarily pays the sum of money specified in the order, he waives all right to review. He cannot in such case ask that the order be reviewed upon the wife’s appeal, even though her specification for review requires a trial de novo of the action. Such trial de novo does not extend to an examination of interlocutory orders.
In, the case at bar it seems to have been recognized by both parties and by the court from the beginning of the action that the wife was entitled to an allowance for attorney’s fees and other expenses of suit. Through some inadvertence such order was not asked for during the course of the trial, or, as the court indicates in its memoranda, it would have been allowed at once. At the conclusion of the trial the court improperly and irregularly included this allowance in its order for judgment. After judgment was entered the amount ordered to be paid was pad voluntarily by the attorneys for respondent to appellant’s attorneys. This payment was, as the record shows, never received by appellant. She was in entire ignorance of the action of her attorneys even though, as held in the majority opinion, such action operated to deprive her of the right of appeal. The attorneys could not have made a stipulation binding upon appellant that she would not exercise her right of appeal. They would not have been authorized without express authority from her to waive an appeal. I cannot understand, therefore, how under any settled practice she should be deprived of this valuable *530right through an inadvertent act of the attorneys, the benefits of which, if any, she did not receive or share to the slightest extent.
Being disqualified, I did not participate in the motion to dismiss the action of Tuttle v. Tuttle, cited by my associates as a precedent for their action in this case. The facts in that case are legally distinguishable from this only in that the misapplication of a technical rule of practice there produced hardship and deprivation of right even greater than I believe possible in this case. The holding in that case was announced so recently that it cannot be regarded as a settled rule of practice; and I feel that I must earnestly protest against the perpetuation of a principle so harsh, drastic, and, as I .believe, thoroughly unsound, and its extension to another case.
The principle that a party by voluntary acceptance of a benefit under a judgment waives the right of appeal has no application to this case. The benefit, so called, was not awarded by the judgment, but by what was in effect an interlocutory order. The husband, by voluntary payment of the allowance made, admitted in effect that it was reasonable, and that he was not aggrieved by it. The case of Williams v. Williams, 6 N. D. 269, 69 N. W. 47, cited as authority, was one in which it appeared that an award of permanent alimony properly entered in the judgment had been accepted by the wife previous to her appeal. In case of Storke v. Storke, 132 Cal 349, 64 Pac. 578, also cited, the wife accepted a payment awarded by the decree as “alimony,” which, as such provision was made upon final adjustment of all the rights of the parties, may be regarded as permanent alimony. It is only necessary to consider the broad distinction between an award of temporary and permanent alimony to be satisfied that the principle announced in those cases has no application whatever to this.
The fallacy of the principle that orders awarding temporary alimony when included in a judgment can be reviewed only by appeal •from the judgment is apparent when we consider the remedy of the husband who was successful in this action, in case no appeal had been attempted by the wife, and he had felt aggrieved by the amount of attorney’s fees allowed. He could secure a review upon this point only by an appeal from the judgment with the general provisions of which he is entirely satisfied, but which would by such act on his part be placed in peril throughout in order that the court might examine the comparatively insignificant matter of an allowance of temporary alimony. If he, therefore, should be unwilling *531to accept the hazard of a trial de novo of the entire judgment, he must waive the right of review on an allowance which he considers excessive. A much sounder theory, it seems to me, is that this allowance must be included in an order from which the husband may appeal specifically, whether the judgment is favorable or unfavorable to him, and which, if it be so desired, may be reviewed on appeal without requiring a trial de novo of a lengthy and complicated action for divorce, with the result of which both parties may be satisfied.
(126 N. W. 229.)I am therefore of the opinion that upon the facts shown respondent’s motion to dismiss should be denied.