dissenting.
There are a number of reasons why I cannot subscribe to the majority opinion herein. Let it be assured that my failure to agree is not because I was the author of the opinion originally announced herein on which a rehearing was granted and the original opinion not adhered to. Basically, I still contend that my position then was right; however, the opinion could easily have been more comprehensive on the question of statutory appeals from the county court to the district court, which I now will try to demonstrate.
As appeared from the petitions for rehearing and other sources, there was an apprehension concerning the statement therein made that a custodial order of the county court was not a final judgment or final decree, and thereby leaving the aggrieved party without any procedural relief. That is not true. Under the old code of procedure, matters similar in principle have been, by this court, many times held to be appealable; however, that means a review of the order complained of and an *472appeal to the district court provides no such review. The statute, being section 165, chapter 46, ’35 C.S.A., provides: “Appeals may be taken to the district court of the same county, from all final judgments and decrees of the county court, except judgments by confession * * Section 168 of the same chapter provides that all such appeals as provided for, “shall be in all respects de novo.” The cause remains the same but is tried anew with the additional privilege of bringing in matters not presented in the trial in the county court, and at the conclusion of such new trial in the district court, it is mandatory that the court make such orders and render such judgments as shall be meet and proper as in a case originally begun in said district court. It is in no manner a review of the judgment of the county court. In other words, upon the entry of the judgment in the district court, the judgment in the county court disappears.
As too frequently is to be found, ambiguous or confusing statements appear in our statutes. It surely cannot be contended that the proceeding in the district court is a review. That being assumed, I am at a loss to understand the following statement in section 168, supra: “ * * * that in all cases where the judgment of the county court is affirmed * *
The majority opinion herein states, “ * * * that the words ‘final judgment’ as used in the statute governing appeals from the county court to the district court, and as used in the code of civil procedure should have the same meaning.”
We have held repeatedly that temporary orders entered in an action for divorce are “final judgments” to which a writ of error may be directed. It is my contention that the authorities cited in the majority opinion supporting that statement should control and be the procedure to be followed in cases similar to the matter in hand. In other words, the aggrieved party certainly is thereby directed to a procedure for a review of the order of which complaint is made. The order herein *473made by the county court which was complained of, was either a proper or an improper order, which could be determined only by a review. If, on review by this court, the order was determined to be improper, or as a result of the abuse of discretion, then it would be reversed likely with some direction.
Such a custodial order as was here entered by the county court, which not only had jurisdiction, but a continuing one, was not a final order, because the order reads: “And it is further ordered, adjudged and decreed that this order shall stand until further order of this Court.”
Our court has said the findings of fact and conclusions of law which are entered in an action for divorce are not a final judgment within the meaning of the statute relating to appeals to the district court. Hobbs v. Hobbs, 72 Colo. 190, 210 Pac. 398. This order was rendered in an original proceeding in the county court upon special pleadings for modification thereof.
The county court in this case had full, true and complete jurisdiction of the original divorce proceeding and the matter of the custody of children involved therein was incident to that particular action. That court retained full jurisdiction during the minority of the children and it cannot be divested of that jurisdiction by circumvention in singling out the custodial part of its decree as a basis for appeal under the statute to the district court. If the district court could be given jurisdiction by such procedure, then the party seeking the modification may obtain an entirely new hearing on the question and obtain a direct judgment of the district court, which would displace the jurisdiction of the county court. After all that has happened here, the county court still has jurisdiction over the children and it never passed to the district court. If it could be said that the district court thus obtained judisdiction of the children, the district court here failed to retain such jurisdiction by its judgment because it directed that the custodial *474order entered in the original divorce decree five years or more before remain in full force and effect. In other words, it is case of the district court playing with the jurisdiction of the county court. If this very day, plaintiff, upon sufficient ground, sought a change in the custody of the children, she would not go to the district court, but would be confined to direct her petition again to the county court. Had the original decree of divorce, which was a final decree been appealed under the statute to the district court in due course, then the district court would have had jurisdiction and all jurisdiction, including that of the children, would have been taken over by the district court. A part of a decree of the county court cannot be singled out, taken away, and given to the district court for the purpose of rendering a new, and entirely different, judgment affecting the original decree.
Assuming that the district court had jurisdiction in the matter before us, which I confidently contend it had not, the judgment it entered herein must be reversed, because in effect it is not a judgment at all. It simply is, in effect, an affirmance of the original divorce decree, which it had no power to do. Instead of entering its own decree, which might have been identical with the decree in the county court concerning the custody, it did not do so, it adopted, and directed, that the original decree in the county court remain in full force and effect, all of which was beyond its power and authority in a de novo procedure.
As hereinbefore set out, the majority opinion states that the words “final judgment” as used in the statute and as used in the code of civil procedure should have the same meaning. Be that as it may, we cannot legislate and modify a statute. We can and should clarify our. rules of civil procedure to the end that the courts and the Bar would have no misunderstanding as to what is and what is not a final judgment. However, it does not necessarily follow that the meaning should be the *475same, because the rules apply to a review of what may be termed a judgment, while the other is a statutory proceeding and what is, in effect, a new trial in the district court.
There is a distinction between custodial orders and orders concerning temporary alimony or attorney’s fees.
In the attempted appeal in this case to the district court, it was not an appeal attacking the modification order entered by the county court, it was simply a presentation of the same motion that was made to the county court for the change in custody. If the district court had any jurisdiction which it could assume, then it was a matter of determining on a hearing, the merits of the motion. If, upon such hearing, the district court determined that the motion was not well taken, then there was nothing left to do except deny the motion. If it felt that the motion had merit and there was a sufficient showing made, then it should enter its own judgment and not adopt or approve or affirm a previous judgment of the county court.
The way having been open for the plaintiff in error to have the original decree of the county court reviewed by our court in so far as it related to the custody of the children, then she must abide by the jurisdiction of that court and that court alone as to any modification of the decree relative thereto, and if she felt aggrieved by any orders entered by the county court, she, according to many decisions of our Court, is not precluded from having such county court order reviewed by this court.
From what I have said herein, it surely is abundantly clear, that, in my opinion, the order complained of here is not a final judgment or decree within the meaning of the statute relating to appeals from the county court to the district court, and that the judgment herein should be reversed.