The decree in the McDonald divorce suit was entered December 15, 1924. Before that date, to wit, December 11, 1924, the McDonalds fully settled their property rights upon terms mutually satisfactory to them, and without submitting a determination of such rights to the court; in other words, the McDonalds did not litigate, and the court did not adjudicate, the property rights of the McDonalds, and that that is the fact is placed beyond controversy by the decree itself, wherein the trial court expressly states that "and the court finds that the property rights of the respective parties to this action have *Page 122 been settled out of court" (emphasis mine). It is true that, following the above quotation, it is also stated that, "as will more fully appear by the terms of the said agreement, which is hereby referred to and made a part hereof," which serves to show the reason the court did not attempt to settle or adjudicate the property rights of the parties, was, that the parties had already done that themselves, out of court, by the contract, to which reference is made, and further emphasizes the fact that the parties themselves preferred to, and did, settle their property rights out of court, instead of having such rights settled in court, and also that the court, for that reason, and the further reason that no issue involving property rights was submitted to the court, had no intention of settling the property rights of the parties, or of making an order in relation thereto, and, accordingly, the court did not adjudicate those rights, nor make an order in relation thereto, either for the payment of money, or otherwise, but merely entered a decree of divorce. No order ever having been made by the court directing the payment of any sum or amount of money whatever, and the property rights of the parties having been mutually settled by contract, out of court, a failure to pay any sum contracted to be paid would be a breach of contract, and not a contempt of court; hence, the trial court was without jurisdiction to make the order in question here.
Therefore, I dissent from that portion of the majority opinion, holding that the trial court had jurisdiction to make the order relieving McDonald from making payments of money to Mrs. Martin, formerly Mrs. McDonald, as he, McDonald, contracted and agreed, out of court, to make. *Page 123