January 22, 1908. A motion is made to dismiss the appeal from two orders of Judge Memminger, the first requiring the defendant to pay temporary alimony for plaintiff's support and fees to her attorneys pending the final judgment, and the other requiring the defendant to show cause why he should not be attached for contempt in failing to comply with the first order.
The motion is on the sole ground that the orders are not appealable. The order requiring the defendant to show cause is not appealable, and as to that order the appeal is dismissed.
The order allowing temporary support or alimony and counsel fees pending the litigation is appealable, and as to that order the motion is refused.
In the argument it was insisted the appeal should be dismissed on the further ground that the appeal from the first order was not perfected in due time nor according to the rules of Court. No notice was given of this ground and the Court can not consider it. This order, however, does not preclude the plaintiff from making a motion to dismiss on that ground after due notice. *Page 59
The order of Associate Justice Gary having served its purpose of staying proceedings until the matter could be heard by the Court, is now revoked.
MR. JUSTICE GARY did not sit in this hearing.