1 2 :This is an appeal from an order refusing a transcript in this case at the expense of the county. The state contends that an appeal will not lie from the order. Section 251 of the Oode, under which the applieation was made, does not provide for an appeal; nor can it be successfully urged that an appeal will lie under section 5118, which provides for appeals in criminal cases, fori that section expressly states that an appeal can only be taken from the final judgment. This court has heretofore entertained appeals from orders ’under the statute in question, but without any suggestion as to its want of jurisdiction so to do. State v. Waddle, 91 Iowa, 748; State v. Robbins, 106 Iowa, 688. The right of appeal is a purely statutory one, and it follows as a matter of course'that, if the statute does not give this right in the case before us, it does not exist. So much of section 251 of the Code as relates to the matter in controversy is as follows: “If the defendant *623in a criminal case has appealed from judgment agajnst him, and shall satisfy a judge or a court from which the appeal is taken that he is unable to pay for the transcript, such judge may order the same at the expense of the county.” This procedure after final judgment in a criminal case, whereby it is sought to impose a financial burden upon the county for the purpose of assisting the defendant in presenting his case to this court, may be said .to be in the nature of a provisional remedy; that is, one which provides for his present needs or for a present exigency. Blair v. Blair, 74 Iowa, 311. It is not, strictly speaking, a part of the criminal case itself, but an after provision, made by the legislature for the full protection of the accused upon appeal to this court. We therefore think it falls within section 4101 of the Code, relating to civil procedure, and that an appeal will lie from the order. This view finds support in State v. Jones, 64 Iowa, 358. The trial judge, in denying the application for a transcript, stated that he did so because he was satisfied that defendant could procure means to pay for the same.
It is contended on the part of the state that this 'finding of the trial court is conclusive under the statute, and that this court cannot review, the evidence upon which the finding is based. Such cannot be held to have been the. intention of the legislature. Such a rule would invent the court with the most arbitrary power, and, no matter how flagrant its abuse thereof, no redress could be had upon appeal. The intent of the statute is to clothe the judge with power to grant or refuse the request as shall appear to him right under the proof submitted, and his finding thereon is subject to review here. If this court is satisfied that there has been no abuse of the discretion lodged in him, his action will be approved. But, if it shall appear there was no foundation for the finding, then it is the duty of this court to correct the error.
*6243 The appellant filed affidavits showing conclusively that he was himself entirely destitute of property or means of any kind or description, and stating that he had no relatives who were able to render him further assistance. In addition to this, his affidavits showed that his relatives absolutely refused to furnish him more money for the purpose of appealing his case, and that he was unable to raise it from any source. To overcome this showing, the state produced affidavits setting forth the fact that the defendant was able to procure bail, and that some of his relatives owned property from which they might raise the necessary money; but in every instance those relatives swore that they were in debt, and that to aid the defendant would require great sacrifice on their part. While a moral obligation may require relatives to assist one another in such cases, we know of no legal rule requiring it, where, as in this case, the defendant is an adult. If, as intimated by the state in resisting the application, the judge had facts bearing upon the question specially within his own knowledge, they ought in some way to have been made a part of the record for review by this court. We reach the conclusion that the trial court made a mistake in not granting the order upon the showing made, and the case is reversed and remanded, with direction to grant the order. —Reversed.