
    STATE ex rel. BORDEAUX, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 2,117.)
    (Submitted November 4, 1904.
    Decided January 6, 1905.)
    
      Supervisory Control — Contempt—Divorce—Order to Pay Alimony — Modification—Appeal.
    Contempt — Alimony—Modification of Order — Supervisory Control.
    1. One ordered to pay alimony, to protect himself from contempt proceedings for noncompliance therewith because of stress of circumstances, should apply for revocation or modification of the order, and, upon failure of such application to the district court, the writ of supervisory control will not lie to relieve him from punishment for noncompliance with such order.
    Divorce — Alimony—Revocation or Modification of Order.
    2. Until a suit for divorce is finally determined, or until the order granting alimony therein is revoked or modified by the court which made it, a wife is entitled to alimony.
    Divorce — Alimony—Appeal—Contempt—Jurisdiction.
    3. An action for divorce is still in the district court, notwithstanding pendency of an appeal, so as to authorize that court, by contempt proceedings, to compel obedience to its order for payment of alimony.
    Original application by tlie state, on tbe relation of Jobn R. Bordeaux, against tbe district court of tbe Second Judicial District, and Hon. William Clancy, a judge thereof, to tbe Supreme Court under its supervisory power, for an order setting aside an order of tbe district court committing tbe relator to prison in certain contempt proceedings for failure to comply with order granting alimony.
    
      Mr. B. S'. Thresher, Mr. G. F. Kelley, and Mr. Peter Breen, for Relator.
    
      Mr. John J. McRatton, and Mr. John G. Brown, for Respondents.
   MR. JUSTICE MILBURN

delivered tbe opinion for tbe court.

This is a petition of relator asking for a writ of supervisory control to annul and set aside an order of the district court committing said Bordeaux to prison in certain contempt proceedings.

'It appears from the record that before the granting of a decree in divorce in favor of the plaintiff against the defendant in the case of Bordeaux v. Bordeaux, 30 Mont. 36, 75 Pac. 524, now before this court for final determination upon appeal after rehearing, the district court made an order directing the plaintiff (relator herein) to pay to his wife, the defendant, the sum of $100 per month alimony, and that this order has never been revoked or modified. In the contempt proceeding it appears that some time after the decree, and after appeal therefrom to this court, the relator failed to pay to his wife the alimony fixed by the court. Upon being cited to show cause why he should not be punished for contempt, he pleaded that he had been enjoined by the court from disposing of any of his property, and that his income was not sufficient to enable him to make the payment, and, further, that the court had no jurisdiction to make any order in the premises, because the case was not then in the district court, but on appeal. The court found his reasons insufficient, fined him $20 for contempt, and ordered him to pay the alimony then due, and to stand committed until the order of the court was complied with and the fine satisfied.

The action of the court was correct. If he could not, by stress of circumstances, comply with the order of the court, it was his duty, for his own protection, to go into court, relate the circumstances, and pray for a revocation or modification of the order directing him to pay alimony. It appears that his property is worth over $60,000, and his income more than $400 per month. A wife is entitled to the alimony until the case is finally determined, or until the order is revoked or modified by the court which made it. As has been heretofore said by this court, the supreme court has jurisdiction as soon as the notice of appeal has been regularly served and filed, and a sufficient undertaking properly filed witli the clerk of the court below, but. the case is in the district court. The determination of the appeal is for the supreme court. The district court has authority to compel obedience to its orders granting alimony. The supremo court certainly would not have any authority to enforce the order of the district court in the premises. (Grannis v. Superior Court of the City and County of San Francisco, 143 Cal. 630, 77 Pac. 647.)

The petition is denied, and the proceedings are dismissed.

Mr. Justice Holloway concurs.

Mr. Chiee Justice Rrantly, not having heard the argument, takes no part in the foregoing decision.  