There were two questions presented in McDonald v. McDonald,55 Idaho 102, 39 P.2d 293, first: Did the trial court have jurisdiction to make the order of April 30, 1934, and, second, was respondent entitled to an award of attorneys' fees and suit money? The second question was decided adversely to respondent. In the majority opinion it was held that the trial court had jurisdiction to make and enter the order of April 30, 1934, and erred in vacating and setting aside the same upon the sole and only ground that it was without jurisdiction to enter such order. As was stated in McDonald v. McDonald, supra:
"The court had jurisdiction of the parties and of the subject-matter and of the particular matter before it, the making of the order of April 30, 1934, which being true, however irregular or erroneous its order may be, it was not absolutely void. (Citing cases.) The court therefore erred in setting aside the order upon the sole ground that it was without jurisdiction to make it."
The petition for review invoked the original jurisdiction of this court; no demurrer had been filed to the petition for modification of the decree; the trial court had not passed upon the sufficiency or insufficiency of the petition, and the same was not before this court for review. The order of April 30, 1934, was not based upon the sufficiency or insufficiency of the petition for modification of the decree. The instant case is before us upon an appeal from the order or judgment of the district court sustaining a demurrer to the petition for modification of the decree. Therefore it cannot be held that in passing upon the jurisdiction of the trial *Page 459 court to enter the order that this court passed upon the sufficiency of the petition for modification of the decree.
The question here for consideration is whether respondent's demurrer to appellant's petition for modification should or should not be sustained. The facts with reference to the decree of divorce and the settlement agreement are set forth inMcDonald v. McDonald, supra. An examination of the decree of divorce and the settlement agreement clearly shows that no provision was made for the payment of alimony to respondent, plaintiff in the divorce action, and it is further apparent that the time within which an appeal might have been taken from the decree expired long prior to the filing of the petition for modification. The rule in this jurisdiction is that where there is no provision in the decree of divorce for the payment of alimony, and no reservation of power to make any such provision, the court is without jurisdiction to amend, modify or otherwise supplement the decree of divorce, after the lime for appeal has expired. (Mathers v. Mathers, 40 Idaho 189,232 P. 573; Mathers v. Mathers, 42 Idaho 821, 248 P. 468; Ricev. Rice, 46 Idaho 418, 419, 267 P. 1076; I. C. A., secs.12-606, 31-704.) It must be concluded that the court did not have jurisdiction to modify its decree of divorce with respect to alimony, there being no provision therein for the payment of alimony or in regard to the same, and the court properly sustained the demurrer to the petition for modification.