Elsman v. Elsman , 54 Nev. 20 ( 1931 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

OPINION Respondent has presented his petition for a rehearing.

Counsel quote from our opinion the language in which we seek to distinguish a judgment from an order, wherein we say that a judgment is a final determination of the rights of the parties, whereas an order is a direction of the court preliminary and incidental to such final determination, and so forth.

Accepting our statement in which we sought to distinguish between a final judgment and an order, counsel contends that it must follow that the action of the court on December 3, 1930, was an order, and not a final judgment from which an appeal may be taken. In support of their contention it is said, quoting from Hunter v. Hunter, 111 Cal. 261, 43 P. 756, 31 L.R.A. 411, 52 Am. St. Rep. 180, that the allowance of alimony is an incident to an action for a divorce, and by analogy the question of the custody of children is an incident to a divorce, hence it must follow that the ruling of December 3 must be an order and not a judgment.

In Lake v. Lake, 17 Nev. 230, 30 P. 878, 879, which was a suit for a divorce and alimony, the court said: "That appellant had the right to appeal from a specific part of the whole judgment — the portion against her — without disturbing the other portions in her favor, we have no doubt."

In Lake v. Bender, 18 Nev. 361, 4 P. 711, 7 P. 74, it was held that where a divorce was first granted and subsequently the issues as to the property were determined, the court had authority to entertain a motion for a new trial as to the property rights. No motion for a new trial was made as to the divorce, but was made as to property rights. The motion was denied. An appeal was taken, and though the court recognized that the question of property rights was one incident to the divorce suit, it held that the right to move for a new trial and to appeal existed. Thus we see that our own court long ago took a position that an appeal might be taken upon that portion of a case which was incident to the main issue.

Counsel contend that the views expressed in our former opinion are contrary to our holding in Hough v. Nevada Treasure M. Co.,53 Nev. 333, 300 P. 948. We do not think so. In that case the order appealed from was one vacating a final judgment, leaving the case standing to be tried upon the issues made by the pleadings, whereas in the instant matter such was not the fact.

Nor do we find anything in the opinion of Nevada First National Bank v. Lamb, 51 Nev. 162, 271 P. 691, 692, contrary to our previous holding. It is true that in that case we said: "It is a well-known general rule that there can be but one final judgment in a case." We thank counsel for calling our attention to the opinion mentioned. Their only mistake lies in the fact that they did not read far enough, for we quoted therein from an earlier Nevada case, Perkins v. Sierra Nevada Silver Min. Co.,10 Nev. 405, as follows: "A judgment or decree is final that disposes of the issues presented in the case, determines the cost, and leaves nothing for the future consideration of the court. When no further action of the court is required in order to determine the rights of the parties in the action, it is final; when the cause is retained for further action it is interlocutory."

Thus it appears that we recognized the correct rule to be that a judgment is final which disposes of the issues and leaves nothing for the future consideration of the court, and that when the cause is retained for further action it is interlocutory.

We cannot see why the same rule would not apply to the question of the custody of the children.

We must not overlook the fact that the practice is different in divorce suits involving the question of alimony and custody of children, than in an action at law. In the later there is no such thing as amending or modifying a judgment once rendered, except as the result of an appeal, while in divorce suits authority may be retained to modify the decree, or order as our statute calls it, as to alimony and custody of the children.

We do not wish to be understood as holding that a decree might not be modified as to the custody of children even if the authority to do so were not reserved. On this point we express no opinion.

We fail to see the force of the contention relative to the entry of the order denying the motion for a new trial. The entry of the order was a ministerial act of the clerk. In our former opinion we said the court did not enter the order, whereas we should have said the clerk did not enter it.

Petition denied.

ON MERITS April 26, 1932. 10 P.2d 963.