(180 N.W.)

proper for the defendant to establish by com- prosecution, taxed at $80.25, and in default

ROBINSON, J. The information charges that in August, 1919, in the county of Ward, the defendants made an assault on W. H. Sibbald with a dangerous weapon, to wit, a hammer of two pounds, with intent to do great bodily harm. The jury found defendants guilty of the crime of a simple assault. The sentence of the court was that each defend- Mrs. Ewarts about four years and have been ant pay a fine of $25 and the costs of the

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Defendants may well be thankful that the Appeal from District Court, Stutsman

timely intervention of the deputy sheriff prevented the use of the hammer.

County; J. A. Coffey, Judge.

Action by Lena Thorp against George W. Thorp for divorce. There was a judgment for plaintiff awarding her alimony, and the custody of a minor child and support for the child, and from an order made four years later, forbidding plaintiff to remove from her residence to an apartment house, and from permitting the child to associate with a certain person except in plaintiff's company, she appeals. Order reversed in so far as relating to association with such named person.

S. E. Ellsworth and John W. Carr, both of Jamestown, for appellant.

Engerud, Divet, Holt & Frame, of Fargo, for respondent.

BRONSON, J. (concurring specially). I concur in the affirmance of the judgment of conviction. It is the contention of the defendants that they were justified in attempting to use or in threatening to use a dangerous weapon to prevent the continued trespass of the complaining witness, after he had been ordered to leave the premises involved, and after he had refused so to do; that the jury, by its verdict, has found the defendant guilty of a simple assault and not guilty of ROBINSON, J. In 1915 there was duly an assault with a dangerous weapon; that entered in this case a judgment dissolving therefore such simple assault was justifiable, the marriage between the plaintiff and the upon this record, as a matter of law. The defendant and awarding to the plaintiff a jury was warranted in finding the defendant liberal alimony and the custody of her minor guilty of a simple assault upon the informa- child, Margaret Thorp, whose age was then tion. Section 10890, C. L. 1913; State v. John- 6 years. In April, 1919, the court made an son, 3 N. D. 150, 152, 54 N. W. 547. In the order forbidding the plaintiff to remove from record there is evidence, not only that the her residence to an apartment house over a defendants had a monkey-wrench and a ham- pool room in Jamestown, and from permitmer in their hands, but also that the com- ting the child to associate with one Mary

plaining witness was pushed and shoved just prior to the use of these instrumentalities. The question of whether the assault was justifiable was properly a question of fact for the jury.

CHRISTIANSON, C. J., concurs.

THORP v. THORP.

(Supreme Court of North Dakota. Nov. 1, 1920.)

(Syllabus by the Court.)

Divorce 303(2)-Order forbidding mother, awarded minor child, from associating with certain person reversed.

In 1915 there was duly entered in this case a judgment dissolving the marriage between the plaintiff and the defendant and awarding to the plaintiff a liberal alimony, giving to her the custody of the minor child and making for its future support a special and generous allowance of $500 a year for 20 years.

Grant, except when in the company of her mother. From that order the plaintiff appeals. The order is made on the judgment roll and on the affidavit of defendant. It avers that the plaintiff continuously and against the best interests of the child permits her to be in the company of Mary Grant, who is imbued with a hatred of the defendant; that the purpose of the plaintiff is to remove the child from her commodious home into a certain building owned by Mary Grant, and to place the child in a flat over a pool room frequented by men, who stand around the entrance to the room and often use vile language; that in using the flat and passing in and out of it the child would hear bad language; and defendant fears that an association of the child with Mary Grant may estrange it from her father.

Lena Thorp, the plaintiff, makes affidavit that during the life of the child she has at all times taken the utmost care of her, and has ever been watchful of her mental and physical development; that the welfare of the child has always been her first consideration. The plaintiff also shows good reason for leaving her home and moving into the flat, and avers that it is one of the most desirable flats in Jamestown; that it is within three blocks of the public school; that one of the flats in the building is the residence of Mary Grant and her husband, and that she, Mrs. Grant, is one of the teachers in the Bronson, J., dissenting, and Christianson, C. public schools of Jamestown, where she has J., dissenting in part. been teaching for 18 years; that she is an

In 1919 the court made an order forbidding the plaintiff to move from her residence into an apartment house and from permitting the child to go in company with Mrs. Grant, a teacher in the public schools, and a lady of the highest repute. Held, that there is no sufficient reason for the order, and it is reversed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(180 N.W.)

educated and refined woman, whose moral character is above suspicion; that the pool room is a clean, sanitary place, and well conducted; and that the plaintiff has never heard Mrs. Grant speak ill of defendant or say a thing of him in the presence of the child. Her affidavit is well corroborated by that of Mrs. Grant.

In the order, as formulated, the learned judge says, in effect, that the order is granted, not only on the affidavits, but also on his own personal knowledge of the situation and circumstances affecting the relation of the parties, etc. That is in no way proper, if the judge had knowledge of material facts on which to base a decision, he should have stated the same by certificate or affidavit, so that a reviewing court might consider the same.

On the facts, as disclosed by the affidavits, no good reason is shown for interfering with the plaintiff's custody of the child or her right to remove her residence to a desirable flat, nor for any order in regard to the as

the home in Jamestown, and $125 per month support money. It further directed that the respondent should deposit $500 annually until the sum of $10,000 had been accumulated for purposes of a fund for the education of the minor child. In April, 1919, the respondent made a motion to modify the decree by providing that the custody of the minor child be transferred to this defendant, or that the decree be modified so as to permanently enjoin the appellant from moving the child into a certain flat, and from permitting such child to come in further contact with one Mary E. Grant. Upon this application, an order to show cause was issued. After a hearing was had on April 28, 1919, both parties appearing through counsel, the court made an order that the appellant be restrained and enjoined from taking the minor child to the apartment involved over a certain pool room, and from making a home for her there, and restraining and enjoining the appellant from permitting the infant to associate with said Mary E. Grant, except when such child was

sociation of the child with Mrs. Grant. De-accompanied by her mother. The court in

fendant had no reason for thinking or suspecting that a lady of good character and high repute would think of doing the child so great an injury as to say a word to lessen her pride of birth and her love for a father who has made for her ample and generous provisions.

It appears, however, that more than a year has elapsed since the making of the order appealed from, and that portion of the order which restrains the plaintiff from removing to the flat over the pool room is moot. Judge Birdzell is of the opinion that that portion of the order should be affirmed and hence disagrees to this extent with the opinion of the writer. But he is further of the opinion, in accord with the views of the writer, that upon this record there does not appear to be sufficient reason for prohibiting ordinary communication between the child and Mrs. Grant. The decision of this court is that the order appealed from is reversed in so far as it relates to Mrs. Grant, with costs to the appellant.

BIRDZELL and GRACE, JJ., concur.

such order further stated that

"After considering the previous records and files in this action and the affidavit of Geo. W. Thorp, attached to and served with the order to show cause, and his additional affidavit made this day, and the affidavit of Lena Thorp, and Mary E. Grant, as well as the court's personal knowledge of the situation and circumstances affecting the relations of Mrs. Mary E. Grant to the parties herein, and the location and surroundings of the plaintiff's present residence and the building in which the plaintiff proposes to take up her residence with the child in question, the court is of the opinion that it would be inimical to the welfare of the infant daughter of the parties hereto to have her home in said apartments over said pool room, and in close association with Mrs. Mary E. Grant, who occupies part of the same second story of said pool room building."

The appellant has appealed from this order. The papers returned to this court, in addition to the original notice and undertaking of appeal, consist of the following papers: Summons, complaint, affidavit of service, stipulation of counsel, agreement of the parties, findings of fact, conclusions of law,

BRONSON, J. (dissenting). This is an ap- order for judgment, judgment and notice of peal from an order of the district court, re-entry of judgment in the original divorce ac

tion; also the application of the defendant for modification of decree and for an order to show cause, the order to show cause, the affidavit of the appellant, the affidavit of Mary E. Grant, and affidavit of the respondent, and the order herein involved. These papers are accompanied by a certificate of the clerk of the district court. There is no certificate attached by the judge of the district court who made the order.

straining the appellant concerning the residence and associations of her child. The facts, necessary to be stated, are as follows: In October, 1915, a decree of divorce between the parties was entered. It awarded to the wife, the appellant herein, the care, custody, and full control of their minor child, with the provisions that the respondent should be permitted to have access to such child at reasonable times, and should have the privilege of entertaining such child and have her with him as much as he desired during vacation periods when such child was not attending school. It further awarded to the appellant tion of the decree of divorce formerly entered

This case is an equity action. This court may affirm, reverse, or modify the order, so made, if it is to be considered as a modificain this case. See Rindlaub v. Rindlaub, 19 N. & case accordingly must be remanded for the D. 352, 125 N. W. 479. This court might en-purpose of settling a record as this court tertain, likewise, at a subsequent date after a modification of the order herein, another petition for a further modification. See section 7844, C. L. 1913; Rindlaub v. Rindlaub, 28 N. D. 168, 147 N. W. 725.

It is apparent in this case that there has been no settlement of the record herein. It does not appear what matters were considered by the trial court, excepting such as mentioned in this order. It does affirmatively appear that the court's personal knowledge of the situation and circumstances affecting the relations of Mrs. Grant and the location and surroundings of the appellant's present residence and the location in which she expected to take up her residence were within the personal knowledge of the trial court. It does further appear that the court had under its consideration, in rendering the order herein, the records in the original divorce action. Manifestly, all of these records have not

has heretofore held, and in that connection I am of the opinion that upon the settlement of such record the trial court should permit additional testimony to be adduced by the testimony of the parties in open court, and, of other witnesses concerned, as to whether the questions concerning such apartment is not now moot, and the extent to which specifically the original decree of divorce should be modified, if at all, concerning the association of said Mary E. Grant with such child, and concerning particularly her relations, if any, as teacher in the public schools, to such child.

Concerning the latter question it is quite evident that if material evidence was not excluded, it should have been at least adduced. See chapter 8, Laws 1919. To this court trying de novo this subject-matter, with the power, beyond a mere reversal or affirmance, to enter another or different order, and sub

been certified to this court. The transcript ject possibly to a subsequent application to of the evidence in such action has not been amend its order, if so made, there should sent to this court. This court has recently be presented a record settled as the statute

requires, and containing all the requisite evidence. The best interests of the child, and of the parents so require. The due expedition of this controversy, unfortunate as it seems, and containing potential possibilities of further strife and litigation, so demands.

*

CHRISTIANSON, C. J. (dissenting in part). The decree of divorce in this action was entered in October, 1915. That decree provided: "That the care, custody, and full control of said minor child, Margaret Lucile Thorp, be awarded to the plaintiff. That the defendant be permitted to have access to such child at reasonable times, and have the privilege of entertaining said child and having her with him as much as he desires during vacation periods and when said child is not attending school; and that should the plaintiff herein depart this life prior to the time that said minor child reaches her majority, then and in that event the custody and control of said minor child should be, and hereby is, awarded to Mrs. E. W. Thorp, mother of said defendant."

held that upon appeals of this nature a record must be settled as the statute requires; that either the order of the trial court must describe the papers and the evidence upon which the same were made or the record must be settled. Solon v. O'Shea, 177 N. W. 757. It appears in the papers certified to this court that Mary E. Grant has been a schoolteacher in the public schools of Jamestown for a period of more than 18 years. As suggested upon oral argument it is quite possible that this order as made in its broad language restrains the appellant's child from associating with said Mary E. Grant even in the relation of teacher and student, unless the appellant be present. Furthermore, it is quite probable, upon the papers as certified to this court, that the question of moving the child's residence to a certain apartment is now a moot question. The order was entered April 22, 1919. The papers in this case were not filed with this court until June 20, 1920. Orders of this character, in effect, modify the decree of divorce entered and ordinarily should be entered as a modification of the original decree of divorce herein. See section 4404, C. L. 1913; Rindlaub v. Rindlaub, 28 N. D. 168, 147 N. W. 725; Houghton v. Houghton, 37 S. D. 184, 157 N. W. 316. It would be manifestly improper to either affirm or reverse this order upon the present state of the recorder. This is not a case like Rindlaub v. ord before this court. This court is unable Rindlaub, 19 N. D. 352, 125 N. W. 479; Id..

to determine what was the entire evidence presented before the trial court. This court is likewise unable to determine to what extent the question concerning the apartments has become a moot question and the extent to which the association of Mary E. Grant, at least concerning her relation as teacher to such child, requires any modification of the original decree of divorce herein. This

In April, 1919, the trial court made an order, giving directions relating to the care of said minor child. This appeal is from such order. The only ruling complained of -the only ruling presented to this court for review on this appeal-is the making of that

28 N. D. 168, 147 N. W. 725, where an appeal was taken from the decree of divorce, and this court, on a trial de novo, modified the decree, and specifically reserved jurisdiction to make further orders relating to custody of children. See, 19 N. D. 392, 125 N. W. 479. In the case at bar no appeal was taken from the decree of divorce. The original subjectmatter of the controversy was never brought

(180 N.W.)

within the jurisdiction of this court. The occupied by the parties to this action. It is

that the term during which plaintiff propos- it will be necessary for her to pass in and out ed to occupy such flat expired long before thereof, and by and through said crowds, and this case was submitted to this court. I whol- to continually hear such obscene and indecent ly disagree with the majority members, how- language, and witness such loud and boisterous

What about the second provision of the orthe action, the child, and Mrs. Grant. He der? As already stated, we have no means was familiar with all the surrounding circum- of knowing what connection, if any, Mrs. stances. He is a resident of the city of James- Grant had with this action at its inception. town (a city having a population of about The evidence upon which the decree was bas6,600), and his chambers are in that city. He ed is not before us. Upon the oral argument was familiar with the various places involv- it was stated by respondent's counsel, and ed in this controversy. He knew the char- not denied by appellant's counsel, that Mrs. acter and location of the home where the Grant took some interest in the matter at

In the decree of divorce the plaintiff was to display in the presence of said child and othawarded the home which had formerly beeners and in public places, by facial expressions