182 P.2d 824 | Wyo. | 1947
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For a better understanding of the case it is perhaps advisable to set out the facts in so far as pertinent herein chronologically, as near as may be. The plaintiff is the daughter of H. Glenn Kinsley, one of the attorneys appearing in this case. She and the defendant were married in Colorado on February 6, 1939. They have a minor child, Elizabeth Irene Lake, born on January 9, 1941. The parties became, or perhaps at all times after the marriage, were residents of the State of California, plaintiff, however, changing her residence in 1946 as *383 mentioned below. On September 20, 1945, the plaintiff brought an action for divorce against the defendant in the Superior Court of the State of California, in and for the County of Santa Clara. The plaintiff alleged in substance as follow: Plaintiff and defendant were married as above mentioned; they separated about the 4th day of May, 1944; that the parties have a minor child as above mentioned; that plaintiff is and the defendant is not, a fit and proper person to have the care and custody of the minor child; that "during the whole of the married life of said parties, defendant pursued to and toward plaintiff a course of cruel conduct and inflicted upon plaintiff grievous mental pain and suffering, which has completely destroyed the legitimate objects of matrimony." For a second cause of action plaintiff alleged: "That for more than one year continuously last past defendant has wilfully and wholly neglected to provide plaintiff with the necessities of life, having ability so to do, and has compelled her to live upon the charity of her family." Plaintiff demanded alimony and attorneys' fees. The case came on for trial in the foregoing court on November 30, 1945; conclusions of law and of fact were made and judgment was rendered on February 20, 1946, plaintiff and defendant both appearing in person and by their attorneys. The court found that the allegations of the plaintiff mentioned as causes of action for divorce were not true; that plaintiff and defendant separated on November 25, 1944; that the defendant is a fit and proper person to have the custody of the minor child of said parties; that he should have the care, custody and control of her, and that jurisdiction as to such custody should be specifically reserved in the case. The court further found that all attorneys' fees, in the sum of $100.00, ordered by the court to be paid, had been paid; also that the allowance to plaintiff for her support and maintenance at the rate of $50.00 per month had been paid, and that no further *384 payments were to be made thereafter. The court accordingly adjudged and decreed, denying a divorce to the plaintiff; giving the care, custody and control of the minor child to the defendant; permitting the plaintiff to have the right to see and visit said child at all reasonable times and places; and "the court specifically reserves jurisdiction as to any future orders with reference to the care, custody and control of the above named minor child."
On July 13, 1946, the plaintiff, having in the meantime established her residence at Sheridan for more than 60 days, filed her petition for a divorce in the District Court of Sheridan County, Wyoming, and alleged, in brief, for a first cause of action, that the defendant had offered such indignities to the plaintiff as to render plaintiff's condition of married life intolerable; that the defendant and his mother had conspired together to make the life of plaintiff as unhappy and miserable as possible. As a second cause of action, plaintiff alleged that she and the defendant have not cohabited nor lived together as man and wife for a period of more than two years immediately last past, which failure so to do was not the fault of plaintiff. As a third cause of action plaintiff alleged "that the defendant has wholly failed and neglected to provide the common necessaries of life for the plaintiff for a period of more than one year immediately last past, which said neglect was not the result of poverty on the part of the defendant which the defendant could not have avoided by ordinary industry." As a further cause of action plaintiff alleged "that the defendant has wilfully deserted the plaintiff and failed and refused to reside with the plaintiff or provide the plaintiff a suitable place in which to live for a period of more than one year immediately prior to the filing of this action." Plaintiff prayed for the care and custody of the minor child of the parties and for alimony as well as attorneys fees *385 and costs of the case. Summons was duly issued and served upon the defendant in Weston County, Wyoming, where the defendant was then temporarily residing on July 13, 1946. The answer day was fixed as of August 10, 1946. In the meantime an answer and cross petition in the case was prepared, but which did not arrive at the office of the Clerk of the District Court of Sheridan County until August 13, 1946. On the previous day, namely, on August 12, 1946, the court entered a judgment by default against the defendant, and briefly speaking, found in favor of the plaintiff on all of her causes of action, including that defendant had offered plaintiff indignities to make her life intolerable since February 20, 1946. The court awarded the care, custody and control of the minor child to the plaintiff, and directed the defendant to deliver the child over into the plaintiff's custody and control. Alimony was awarded to the plaintiff in the sum of $75.00 per month and the further sum of $35.00 for the support and maintenance of the minor child, a total of $110.00 per month, to begin on July 13, 1946. The court also awarded the plaintiff as a property settlement between the parties the sum of $2,000.00, making that sum a lien on certain oil lands located in Weston County, Wyoming. The court further directed the defendant to pay plaintiff's attorneys' fees in the sum of $250.00.
On August 20, 1946, the defendant filed his motion to vacate and set aside the default and the decree above entered, and asked to be permitted to file his answer and cross petition herein, on the ground that without fault of the defendant, the answer, duly sent by registered mail, in ample time, was delayed in the transportation thereof. The answer and the cross petition, attached to the motion above mentioned and offered to be filed, was duly sworn to by the defendant on August 7, 1946, in Laramie County, Wyoming. Defendant alleged, stating the facts briefly, that the plaintiff has no *386 legal capacity to sue in that she was committed as mentally ill to a hospital in the County of Santa Clara, California, on April 29, 1943. He denied each and every allegation in the plaintiff's petition, referring to grounds for divorce. He set out in substance the decree in the divorce action between the parties hereto entered in the Superior Court of the State of California, in and for the County of Santa Clara, as above mentioned, attaching a copy of the judgment entered, and stating that the child is in California and has never been in Wyoming. He alleged that while plaintiff and the defendant had not cohabited as man and wife for a period of more than two years prior to the commencement of the action, that was not due to the fault of the defendant; that the parties lived in a happy manner together up to the month of March, 1944; that thereafter the plaintiff was induced by her father to leave the defendant and their small daughter, who was sick with measles at the time. He set forth the payments made to the plaintiff pending the divorce action in the California court. In his cross petition defendant alleged as his cause of action the fact that the plaintiff wilfully deserted the defendant and their minor child on or about the 4th day of May, 1944, without cause, provocation or excuse. The defendant, accordingly, prayed that plaintiff's petition be dismissed, that the defendant be granted a divorce, that the court should adjudge that it had no jurisdiction over the person of the minor child, and that he recover his costs and the disbursements herein made.
The motion to vacate, above mentioned, was also accompanied by an affidavit made by the defendant. He stated, in substance, the proceedings in the State of California in the Superior Court in and for the County of Santa Clara, and set forth the findings therein; that the answer and cross petition in this case was duly prepared on August 6, 7, and 8, 1946; that his attorney, *387 Mr. Walton, called up the postmaster while he was present in reference to when the answer and cross petition would arrive in Sheridan, Wyoming. He also stated: "The motion to set aside the default of the defendant and to set aside the judgment entered herein and permit defendant to file his answer and cross-petition herein, is made in good faith; that the defendant has a meritorious defense to said action and will interpose the same if permitted to file his answer and cross-petition herein, and will, as affiant is informed and verily believes, be able to establish said defense and cross-petition on the trial of this action by competent and overwhelming evidence." The motion was also accompanied by the affidavit of Albert D. Walton, attorney for the defendant in the case, stating that he is duly admitted to practice in all the courts of the State; that on August 5, 1946, the defendant came to Cheyenne to assist the affiant in preparing the answer and cross petition above mentioned; that he and his secretary worked on said answer and cross petition on the 6th, 7th and 8th day of August, 1946; that the papers relating to the divorce proceedings in California, above mentioned, were received about August 7, 1946; that on the 7th day of August, 1946, affiant "called William G. Haas, Postmaster at Cheyenne, Wyoming, and inquired of said William G. Haas how long it would take a first class registered letter, duly posted in the post office at Cheyenne, Wyoming, to be transmitted to Sheridan, Wyoming, and was informed by said William G. Haas that if a letter or first class registered mail should be mailed in the Cheyenne post office before eleven o'clock at night, that it would be dispatched during the night on a Colorado and Southern train leaving Cheyenne for Casper between midnight and one o'clock that night, and that it would arrive in Casper the following morning between seven and eight o'clock, if the train was on time, and would *388 then be picked up by the bus running from Casper to Sheridan and would reach Sheridan about noon that day." Affiant further stated that about 5:20 o'clock in the afternoon of August 8, 1946, he duly mailed at Cheyenne, by registered mail, the answer and cross petition in this case, to the Clerk of the District Court of Sheridan County; that he at that time asked the registry clerk at Cheyenne to dispatch the envelope with its contents on the evening train going to Casper that night, and that he was told by the clerk that his request would be complied with. "Affiant further says that said answer and cross-petition were attempted to be filed by affiant on behalf of defendant in good faith, and that affiant verily believes that defendant has a good defense to said action and has a good cause of action against plaintiff upon his cross-petition; that affiant was not guilty of any negligence in transmitting said answer and cross-petition to the Clerk of the District Court at Sheridan by the United States mail for the reason that the said answer and cross-petition and copy thereof should have arrived at Sheridan, Wyoming, by approximately 12:30 o'clock P.M. on the 9th day of August, 1946." The motion to vacate and set aside the default and judgment above mentioned was opposed by the plaintiff. Affidavits were filed both by plaintiff and her father, which, speaking briefly, denied that defendant has a meritorious defense, traversing statements made and defenses set up by the defendant, accusing defendant of misconduct toward plaintiff, and alleging that he and his mother ordered plaintiff out of his home and that he failed to support her. It is not necessary to set out the contents of these affidavits in detail, for the reason hereinafter mentioned.
On August 26, 1946, the motion to vacate the default and judgment above mentioned came on for trial. Without going into details it appeared in that trial that the envelope containing the answer and cross petition, instead *389 of having been mailed to go on the Colorado and Southern Railway to Casper and thence to Sheridan, was sent by another route, namely, by way of Sidney, Nebraska, and Alliance, Nebraska, and thence to Sheridan, and did not arrive at Sheridan, Wyoming, until about 7:00 o'clock in the evening of August 10, 1946. The assistant postmaster testified definitely that the letter above mentioned arrived at the post office at Sheridan, Wyoming, at approximately 7:15 P.M. of that day, and that notice thereof was placed in the post office box of the Clerk of the District Court of Sheridan County, within approximately fifteen minutes thereafter. The Clerk of the District Court testified, however, that he did not see the notice until the morning of August 13, 1946, and that he then presented the answer and cross petition to the judge of the district court. The defendant testified in the case, stating in substance, that he communicated with Mr. Walton, his attorney, two days after summons in the case was served upon him; he mailed the summons and copy of the petition to him, and that he was first in the office of his attorney on the 19th or 20th of July, 1946, and that in order to procure the papers relating to the California divorce case, he went to California and stayed there a few days' time; that these papers, however, did not arrive until August 7, 1946.
On September 23, 1946, the district court entered an order refusing to set aside the default and judgment above mentioned. An appeal from that order was thereafter duly taken to this court.
On September 26, 1946, a motion was filed on behalf of the plaintiff that the defendant be cited for contempt for failure to pay the amounts of money awarded to the plaintiff as hereinbefore mentioned. An affidavit by Mr. Diefenderfer stated that "at present the said defendant is employed as an oil well driller in the *390 Osage Field in Weston County, Wyoming, where, as this affiant is informed and believes, and therefore alleges the fact to be, he is earning in excess of $300.00 per month; that by reason of his earning capacity, as hereinbefore set out, the defendant is well able to pay the money allowances made to the plaintiff herein." On September 27, 1946, an order was entered by the court citing the defendant to appear on October 10, 1946, why he should not be punished for contempt. On October 10, 1946, the defendant, without appearing personally, but appearing by his attorney, filed an affidavit in the above entitled matter setting forth, that he has no money or property wherewith to pay the amounts ordered to be paid; that only for three weeks he earned, in employment in California, immediately prior to July 1, 1946, a net amount of $220.00 per month, the remainder of the time a net amount of $213.00 per month; that prior to January 1946, he had an interest in an oil and gas lease in 120 acres of land in Weston County, Wyoming, but that he assigned his interest during that month; that he has no further interest therein, and that it is problematical whether the lease has any value; that he also owned an equity in 32 acres of land adjacent to the town of Monticello, Iowa, which he and his brother had purchased from their mother, and on which each of them had paid the sum of $2,000.00. The payments made by the defendant consisted of $450.00 which had been the property of the plaintiff, and $1550.00 which had been saved by the defendant; that the purchase price of the land was $8,000.00; that the same was encumbered, had a mortgage against the same in favor of the Monticello State Bank, and that the mortgagee had threatened to foreclose the mortgage; that defendant has no other property; "that at all times prior to May 1944, affiant was supporting his wife, child and himself and was paying his share of the expenses and upkeep of the house in which they lived *391 with affiant's parents and his share of the food and for all of the clothing and other expenses of himself and family; that in September, 1945, plaintiff brought suit against defendant for a divorce in Santa Clara County, California, in which case defendant was required to employ lawyers and pay them for their services and was required to pay plaintiff's lawyers for their services and was required to pay the plaintiff $150.00 support money, all of which cost the defendant 26 days' pay as he was required to lay off from his work a total of twenty-six days, and it also cost affiant approximately $1000.00 in cash, and as a result thereof, when said action was ended affiant was about $500.00 in debt; that since the termination of said law suit in California the defendant has supported himself and child and it has cost him nearly all that he earned to do so, and as a result thereof, by selling U.S. War Bonds, in the face value of $375.00, he was able to liquidate his indebtedness." Further, "that affiant's parents have no ready money which they could loan to affiant with which to pay the amounts called for in said Decree, nor have they any property that is not mortgaged or pledged to secure either the said loan to said Monticello State Bank for the indebtedness hereinabove mentioned or mortgaged or pledged to Redwood City National Bank of Redwood City, California, to secure a mortgage indebtedness to said bank in the sum of approximately $14,000.00 owing by said William E. Lake and Mattie E. Lake (parents of defendant) and secured by a mortgage on their home in Palo Alto, California." Affiant further stated that he has helped drill an oil well in Weston County, Wyoming, commencing with July 1946; that he received no compensation whatever except groceries and provisions, but with the expectation to receive an interest in the oil, if produced, so as to be able to pay part on the mortgage on the land near Monticello, Iowa. *392
Notwithstanding the filing of this affidavit, the court on October 10, 1946, issued an order committing defendant to jail until the sum of $250.00 attorneys' fees and $225.00 unpaid alimony and support money should be paid. Defendant, however, has not been apprehended.
On December 9, 1946, on motion of plaintiff, the court made an order allowing the attorneys for plaintiff the sum of $350.00, in connection with the appeal herein, also the further sum of $50.00 for the expense of preparing and filing her brief in the Supreme Court, and the further sum of $100.00 for the expense of her said attorneys in going to Cheyenne, Wyoming, a total of $500.00, making a total allowance to that date of about $1125.00 aside from costs.
On January 17, 1947, plaintiff's attorneys filed in this court a motion to dismiss, on account of the fact that the defendant had not paid the sums which he had been ordered to pay by the court, stating, in affidavits attached, that he has been and will continue to be contemptuous of any court order. On February 5, 1947, a further motion was filed in this court to set the motion to dismiss the appeal herein for immediate hearing; that if that motion should be denied that this court make an order compelling the defendant to pay the plaintiff the sums allowed by the district court as above mentioned. Thereupon this court, unable to set the case for immediate hearing upon the motion to dismiss the appeal, directed the defendant to pay the sum of $200.00 into the office of the clerk of this court to be paid to plaintiff's attorneys, all other matters in connection therewith being reserved for the further consideration of this court. The $200.00 above mentioned has been duly paid by defendant. The defendant filed a resistance to the motion to dismiss, supported by the affidavit of the defendant, denying that he has been or will continue *393 to be contemptuous of any court proceeding, stating that he is unable to comply with the awards made by the trial court against him; that he is willing to support his wife in his own home, but cannot maintain two households. The contents, other than already mentioned, of affidavits filed in this court, and in the court below, either by the plaintiff, or on her behalf, or by the defendant, are not important so far as the present appeal is concerned, and it would not subserve any good purpose to set them out. The case has now been argued and submitted both on the motion to dismiss the appeal and upon the merits. On the Motion to Dismiss the Appeal.
Counsel for plaintiff have insisted on the motion to dismiss the appeal, both in their brief and on oral argument. Counsel for defendant did not mention the motion in his brief and it is claimed that this may be taken as an admission that no defense thereto exists. We do not so construe the attitude of counsel for defendant. He did not need to mention the motion in his brief on the main case. He might have filed a reply brief answering plaintiff's brief on that point, but that was not essential unless the court had ordered that to be done.
It is contended that the motion to dismiss should be sustained on the ground that the defendant has not complied with the orders of the district court allowing alimony, expenses and fees for attorneys in connection with the case below and on this appeal. The fact of nonpayment is not disputed except in so far as already mentioned, the defendant claiming that he is unable to make the payments. We are cited by counsel for plaintiff to many cases from this and other jurisdictions. In Duxstad vs. Duxstad,
On July 13, 1947, the awards made by the trial court, at the behest of counsel for plaintiff, against the defendant, will have accumulated to $1650.00, aside from costs. Leaving out of consideration the time the defendant worked in the Osage oil fields, for the reason above stated, and assuming, as perhaps we reasonably may from the record before us, that from October 10, 1946 — about which time he probably left the state — he earned $200.00 net per month, after deduction of income taxes, he will have earned to July 13, 1947, the sum of $1800.00 If he had paid the $1650.00 he would have left the sum of $150.00 out of which to support himself and his minor child for the period of nine months. Taking all the facts in the case into consideration we do not feel warranted in dismissing the appeal herein. It is clear, we think, that if we should do so we should be guilty of an abuse of judicial discretion. The motion to dismiss the appeal will, accordingly, be overruled without further allowance to the plaintiff or her attorneys other than what we have already made.
On the Merits.
The motion to set aside and vacate the default and judgment herein was filed during the same term of court in which the judgment was entered. In such case the court has inherent power to do so, to be exercised in the sound discretion of the court. McGinnis vs. Beatty,
These general rules, so stated, would seem to indicate unerringly as to what should be done in the case at bar. In any event we can, in the light of these rules, read with greater clarity the rule announced in a number of cases involving unavoidable casualty and misfortune similar to the case at bar. In the case of Chicago, R.I. P. Ry. Co. vs. Eastham,
In Yates vs. Guthrie,
The holding of the trial court herein was contrary to all the foregoing cases. We are unable to see how we could be justified in ignoring them and not following them, particularly in view of the general rules already set out. It is claimed that it was the practice in Sheridan County to hear a case on the Monday following the Saturday on which the defendant fails to appear. We do not think that this practice should be permitted to overrule the rules and principles of law *405
above mentioned. It is also claimed that defendant should have engaged an attorney at Sheridan, or near Sheridan, familiar with the practice there instead of having as his counsel Mr. Walton, a resident of Cheyenne. However, Mr. Kinsley, one of the counsel for his daughter, plaintiff herein, is a prominent attorney at Sheridan, a city of not over fifteen thousand population, and with a limited number of attorneys. Experience teaches us that in view of that fact, defendant might have had difficulty in engaging an attorney at Sheridan or near Sheridan, let alone one of his choice. Furthermore, an attorney at law, duly admitted in this state, is entitled to practice in all of its courts, and we think that the bar of the state would be surprised if we should lay down a rule as narrow as that contended for by counsel for the plaintiff. Again it is claimed that Mr. Walton should not have used the "old fashioned" mail service, but should have used the air mail service. We do not think that the regular mail service is as old fashioned as counsel claim. If the air mail service had gone amiss, with the answer on board, it would doubtless have been claimed that it is so new that counsel for defendant should not have taken the chance to use it. It is also contended that counsel for the defendant could have telephoned to the Clerk of the District Court or the Judge, and could have obtained an extension of time. Of course, by the use of hindsight, we can easily determine that a certain thing could have been avoided, but we think that the rule to be applied is that of ordinary, reasonable foresight. See Barto vs. Sioux City Electric Co.,
It was said in Kelley vs. Eidam,
It would perhaps not be necessary to say anything further in this case were it not for the fact that counsel for the plaintiff have discussed all the various matters involved herein in an attempt to show how futile it would be to open up and vacate the judgment herein. And the trial court, too, judging from its opinion, set out in the brief of plaintiff, considered all of these matters and concluded in view thereof that it would be needless to open up and vacate the decree. So we cannot *409 overlook, and in a measure are constrained to discuss, to some extent at least, the main matters involved in this case.
One of the main questions herein, though incidental to a divorce, relates to the custody of the minor child of the parties, who, as appears to be agreed, is in California and has never been in this state. As already heretofore stated, the defendant, in his answer, asked the trial court to hold that it has no jurisdiction over the person of the child. It had awarded the custody of her to the plaintiff. A few months previously the custody had been awarded to the defendant by the California court, with full jurisdiction of the parties herein and of the minor child. The California court stated: "The court specifically reserves jurisdiction as to any future orders with reference to the care, custody and control of the above named minor child." Thus the decree of the District Court of Sheridan County appears to come into direct conflict with the California court, and without having jurisdiction over the child, it directed the defendant to deliver the custody thereof to the plaintiff. Hence the court apparently placed the defendant in the unenviable position of violating either the direction of the District Court of Sheridan County or that of the California court, and seemingly placed him in jeopardy of being in contempt of either the one court or the other. Counsel for plaintiff say that the custody of a minor child may always be inquired into by the court, and that the order of the California court could not control the action of the district court of Sheridan County on this matter. We are cited to Linch vs. Harden,
The Restatement of Conflict of Laws, attempting to settle whatever conflict there might be on the point above mentioned, states the following rules. Sec. 117: "A state can exercise through its courts jurisdiction to determine the custody of children or to create the status of guardian of the person only if the domicil of the person placed under custody or guardianship is within the state." Sec. 146: "Upon the legal separation *413 of the parents, by divorce or otherwise, custody of their child can be given to either parent by a court of the state of domicil of the child." Sec. 147: "Except as stated in § 148, when the custody of a child has been awarded by the proper court to either parent, the decree will be enforced in other states." Comment (a): "An award of custody, like any other judgment or decree of a competent court, is entitled to recognition and enforcement in other states. Such a decree receives the same effect in another state that it receives in the state in which it was rendered. It is, therefore, conclusive of the status of the child at the time the decree was rendered and the merits of such an award cannot be reexamined either in the state where rendered or in another state." Sec. 148: "In any state into which the child comes, upon proof that the custodian of the child is unfit to have control of the child, the child may be taken from him and given while in the state to another person." As heretofore stated, the minor child involved in the case at bar has never been in the jurisdiction of this state, and Section 148, supra, accordingly has no application herein. Section 117 of the Restatement above mentioned is repeated in the comment under Section 33 of the Restatement of Judgments, and has been cited and approved in Wear vs. Wear, supra, and in Callahan vs. Callahan, supra. The rule appears to be sound, particularly in a clear case such as this when the child has never been in the state, and jurisdiction over the child has been reserved by the California court. It is quite apparent, therefore, that when the trial court attempted to adjudicate the custody of the minor child, and direct the defendant to turn her over to the custody of the plaintiff, it was wholly without jurisdiction to do so, and the judgment in that respect is null and void.
Counsel for plaintiff refer to the fact that the defendant, in his cross petition, asks for a divorce, seemingly thinking that since one or the other of the parties *414 would obtain a divorce in any event, the case should not be reopened, but, of course, in a retrial a divorce might be denied to either or both of the parties. Nor do we know of any decision of the courts holding that it makes no difference which of the parties is granted a divorce. Again the question of res judicata as to the grounds of divorce in this case is involved herein. We think it best not to enter into the details at this time. The date of separation of the parties is not quite clear to us, and we are not certain as to what bearing, if any, that should have in a case such as before us. It is true, of course, that the point of indignities offered to plaintiff since February 20, 1946, is in any event left in the case, but since the parties have not lived together since that date, as appears from the record, it would seem that it would have been advisable for the court to have opened the case for the consideration of the general subject, let alone that the defendant, as we have held, had a right to be heard on any point that had not been and could not have been adjudicated by the California court. We do not think that it is necessary to discuss at this time any other points suggested or argued in this case.
We are not unmindful of the learning and ability of the trial judge in this case and his unsurpassed record during his thirty years on the trial bench, but try as we may we are unable to arrive at the conclusion at which he arrived, and we are compelled, reluctant as we are to do so, to dissent from him. We think that it is clear that the order appealed from herein should be reversed, with direction to open up the default, to set aside the judgment entered in the case, to permit the defendant to file the answer and cross petition tendered by him and for other proceedings not inconsistent with this opinion. Since the judgment in the main case must be vacated all orders ancillary, collateral or incidental thereto, or dependent thereon, must fall with it, and must also be vacated. 5 C.J.S. 1478. Decennial Digest, *415 Appeal and Error, Sec. 1180(2). That includes the order relating to the commitment of the defendant to jail and the order relating to the allowances made to or for the plaintiff, or to or for her attorneys. An order to the foregoing effect will be entered. *416