(dissenting). This is an appeal from an order of the district court restraining 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 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 accompanied by her mother. The court in 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 shoAV cause, and his additional affidavit made this day, and the affidavit of Lena Thorp, *118and 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 tho '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 said 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, order for judgment, judgment and notice of entry of judgment in the original divorce action; 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.
This case is an equity action. This court may affirm, reverse, or modify the order, so made, if it is to bo considered as a modification of the decree of divorce formerly entered in this case. See Rindlaub v. Rindlaub, 19 N. D. 352, 125 N. W. 479. This court might entertain, likewise, at a subsequent date after a modification of the order herein, another petition for a further modification. See § 7844, Comp. Laws 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 tho 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, *119the records in the original divorce action. Manifestly, all of these records have not been certified to this court. The transcript of the evidence in such action has not been sent to this court. This court has recently 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, 45 N. D. 362, 177 N. W. 757. It appears in the papers certified to this court that Mary E. Grant has been a school teacher in the public schools of Jamestown for a period of more than eighteen years. As suggested upon oral argument it is quite possible that this order as made in its broad language restrains the appellant 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 § 4404, Comp. Laws 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 record before this court. This court is unable 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 case accordingly must be remanded for the purpose of settling a record as this court 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 mod*120ified, 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 Laws 1919, chap. 8. 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 subject possibly to a subsequent application to amend its order, if so made, there should 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.