Welling v. Welling

The opinion of the court was delivered by.

Burch, J.:

This is an appeal from an order modifying .a judgment. On June 22, 1914, the district court rendered a judgment expressly stating that a sum of money to be paid to the plaintiff, together with an attorney fee to her attorneys, was “as and for alimony,” and that further alimony was denied. An appeal was taken to this court, and the effect of the quoted recital was considered in connection with an application for support and suit money. On January 14, 1915, the appeal was dismissed. At the September, 1915, term of the district court, and on December 15, 1915, the court, presided over by the successor to the judge who was in office when the judgment was rendered, struck from the judgment the quoted recital. This was done, not under any provision of the civil code, but in response to a simple motion to modify the judgment.

It was a judicial question, in June, 1914, whether or not the sum stated to be “as and for alimony” was one which could be so appropriated, precisely as the same subject was a judicial question in December, 1915. If the court erred in its judgment in 1914, the remedy was by appeal prosecuted to effect in this court, and not by an appeal to the same *140 court.. After lapse of the term, and after lapse of a year and a half, the district court lacked authority to rectify the decree.

The judgment of the district court is reversed, and the cause is remanded with direction to reinstate the original judgment.