¶2 By the Court,
¶3 Respondent has moved to dismiss the appeals in the above-entitled cause.
¶4*23 ' In January, 1927, the lower court granted a divorce to Beatrice J. Elsman from Ralph Elsman, and awarded to-him the custody of their minor child, Ralph Elsman, Jr., subject to certain rights of visitation by the mother. In May, 1928, the court modified the original decree relative to the custody of the minor child. On November 4, 1929, Ralph Elsman filed in said court and cause a motion to again amend the said decree relative to the custody of said child, and thereafter the said Beatrice J. Elsman filed her objections to the modification as sought by Ralph Elsman, and applied for a modification thereof so as to give her the sole possession and custody of said child.
¶5 After numerous continuances, hearings, and a prohibition proceeding in this court (State Ex Rel. Elsman v. District Court, 52 Nev. 379, 287 P. 957), the lower court on December 3, 1930, filed its written opinion and decision wherein it incorporated the following:
“It is the order of this court that the petitions or motions of both plaintiff and defendant for the modification of the decree of this Court entered herein January 4, 1927, relative to the custody of Ralph Elsman, Jr., as modified May 2nd, 1928, be, and each of said motions or petitions for modification is denied.
“And it is ordered that the said order of modification of May 2nd, 1928, be and the same is affirmed and continued in force as therein provided, save and except that instead of the defendant, Beatrice Elsman, being entitled to one month’s visitation of an hour a day on notice by ■her to plaintiff of any one month in each year desired by her, it is the order of this Court that said right of visitation be, and the same is fixed for the month of July of each year, at which time defendant shall have the right to visit the minor child, Ralph Elsman, Jr., for one hour each day at either of the homes of said minor’s father in Washoe County, Nevada, at the Franktown residence or the Reno residence.”
¶6 Thereafter, and on December 10, 1930, counsel for the defendant served and filed a motion for a new trial. Counsel for plaintiff also filed a motion for a new trial. *24 Both motions came on for hearing on December 23, 1930, at which time counsel for plaintiff withdrew his motion for a new trial, and thereafter, on December 23, 1930, argument was heard upon defendant’s motion. After argument the court entered an order denying defendant’s motion.
¶7 On the 23d of December, 1930, the court, on motion of counsel for plaintiff, ordered that an order, nunc pro tunc, as of December 3, 1930, in terms identical to those incorporated in the decision of December 3, 1930, be entered.
¶8 On February 26, 1931, the defendant served and filed her notice of appeal “from a judgment rendered in favor of the plaintiff and against the defendant in the above-entitled action and court on December 3, 1930, and also from that certain order made by the above-entitled court in the above-entitled cause on December 23, 1930, denying defendant’s motion and application for a new trial of said cause, said order being entered in the minutes of the court on or about December 31, 1930.”
¶9 Thereafter, on May 4, 1931, the defendant served and filed her notice of appeal “from an order Made December 3, 1930 in the above-entitled Court and cause in favor of plaintiff and against the defendant, denying defendant’s application for an award that defendant be granted custody of Ralph Elsman, Jr., a minor child of plaintiff and defendant, the Minute record of which said order denying defendant’s said application, was not ápproved and signed by the trial judge, to-wit: Hon. Geo. A. Bartlett, prior to March 10, 1931; and also, from that certain order made by the above-entitled Court in the above-entitled cause on December 23, 1930 denying defendant’s Motion and application for a new trial of said cause, said order being written up by the Clerk in the Minute Book of said Court on or about December 31, 1930 and which said record was not approved and signed by the said Judge Geo. A. Bartlett prior to March 10, 1931.”
¶10 Counsel for respondent on Juné 22, 1931, served and filed notice to dismiss the two appeals taken by appellant, for lack of jurisdiction of this court to entertain *25 the same, for which the following reasons are assigned:
“First: The proceedings sought to be appealed from and called in appellant’s first Notice of Appeal, dated February 26, 1931, ‘a judgment rendered in favor of plaintiff and against the defendant in the above-entitled action on December 3, 1930,’ is not and was not a Judgment, but was and is an Order of the Court, denying defendant’s Motion for an Order modifying, changing, and amending certain parts of the Decree of divorce heretofore made and entered in said action on the 4th day of January, 1927, and that no appeal was taken from said Order of December 3, 1930, within sixty days from the time said Order was made and entered in the Minutes of the Court;
“Second: That the appeal from the Order of the Court in said cause on December 23, 1930, denying defendant’s Motion and Application for a new trial, was not taken within sixty days from the time said Order was made and entered in the Minutes of the Court;
“Third: That there is no authority under the laws of the State of Nevada, for the new trial of a Motion, and that no appeal lies from an order denying such motion for new trial;
“Fourth: That the court has no jurisdiction to entertain defendant’s attempted appeal under her Notice of Appeal dated May 4, 1931. That said appeal was not taken within sixty days from the time the Order of December 3, 1930 was made and entered in the Minutes of the Court, denying defendant’s application for an award that defendant be granted custody of Ralph Elsman, Jr., a minor child of plaintiff and defendant.
“That there is no authority under the laws of the State of Nevada, for the new trial of a motion and that no appeal lies from an Order denying such motion for new trial.
' “That such attempted appeal from said Order denying defendant’s motion for new trial was not taken within sixty days after said Order denying said motion for a new trial was made and entered in the Minutes of the Court.”
¶11*26 Counsel for respondent have stated the points involved on this motion as follows:
“First: Whether the appeal is taken from a final judgment in an action or special proceeding, or whether it is an appeal from a special order made after final judgment entered in the minutes of the court.
“Second: Whether or not an appeal lies from an order overruling a motion for new trial of a motion.”
¶12 On May 5, 1928, the court, on application of the plaintiff, “ordered, adjudged and decreed” that the original decree be “amended, modified and changed.” It further reserved the right to again alter the decree, judgment or order, or whatever it may be, whenever the best interest of the child so demands.
¶13 The determination of the motion to dismiss turns upon whether or not the order, decree, or judgment of-December 3, 1930, was an order or a judgment. If it were a judgment, the motion to dismiss must be denied.
¶14 Counsel for respondent contend that it is an order, and in support of their contention they rely strongly upon section 420 of our civil practice act, section 8909, Nev. Comp. Laws 1929, which reads: “Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.”
¶15 ■ The section quoted is no aid in determining the point, for the reason that it excepts an order included in a judgment.
¶16 Under the old practice, when actions at law and suits in equity were separate and distinct, the final determination of action at law was called a judgment, while in suits in equity it was designated a decree. Divorce suits were equitable in character, hence they were known as decrees. Under the code of civil procedure the words “action,” “suit,” and “judgment” are often used without any regard to their old meaning. Even in our divorce act we do not find the words “judgment” or “decree” used, but do find the words “order” and “ordered” (see sections 9462, 9463, 9464, 9465 and 9466, Nev. Comp. Laws 1929), which indicates to our *27 minds that the legislature was not so much interested in the word or words used to indicate its intention as to the final determination of the matters involved, as it was to direct what might or should be done.
¶17 It is our impression that a judgment or decree, as the case may be, as distinguished from an order, is the final determination of the rights of the parties, whereas an order generally is a direction of the court preliminary and incidental to such final determination. There may be, of course, certain orders after final judgment, such as an order denying a motion for a new trial and a special order made after final judgment. The latter, however, is one which relates to the final judgment, either by way of enforcing or staying its operation. Kaltschmidt v. Weber, 136 Cal. 675, 69 P. 497; Watson v. Prior, 49 Cal. App. 554, 193 P. 797.
¶18 The determination of December 3, 1930, did not pertain to enforcing or staying the operation of a judgment or decree, hence we think it is not a special order made after final judgment.
¶19 The original decree in this cause was a final determination. The amendment of May 3, 1928, was, when entered, of equal dignity to the decree of 1927, when it was entered, and entirely supplanted the decree of 1927, as to the custody of the child. No other view can, in reason, be maintained. This being true, we think no other sound conclusion can be reached but that the' determination of December 3, 1930, was a final judgment, subject, of course, to further modification, altering, or amendment, as subsequent developments may justify.
¶20 In Gury v. Gury (Cal. App.), 300 P. 81, 83, which was a case involving the custody of a child, the court says: “The authorities are clear that a change which materially affects the judgment and the rights of the parties against whom it is rendered and which involves the exercise of judicial discretion amounts to a new judgment”— citing authority.
¶21 We think this is such a case. There was. a material *28 change affecting the rights of the parties, and the mak-, ing of the change involved the exercise.of judicial discre-. tion.
¶22 The determination of December 3, 1930, being a final judgment or decree, the respondent had the right to move for a new trial and to appeal from the order, denying the same within sixty days from the day it was entered in the minutes of the court. It is the practice of the clerk to jot down, at the time an order, judgment, or decree is entered, the substance of the same, and thereafter to enter it in a formal manner in the minute book so known and designated. It appears that the court did not enter in the minute book the order denying the motion for a new trial in this matter until on or after December 28, 1930. The appeal was taken February 26, 1931, or within sixty days from such entry, which was within apt time. It follows that the motion must be denied.
¶23 It is so ordered.
¶24 On Petition for Rehearing
¶25 OPINION
¶26 By the Court,
¶27 Respondent has presented his petition for a rehearing.
¶28 Counsel quote from our opinion the language in which *29 we seek to distinguish a judgment from an order, wherein1 ■we say that a judgment is a final determination of the rights of the parties, whereas an order is a direction of the court preliminary and incidental to such final determination, and so forth.
¶29 Accepting'our statement in which we sought to distinguish between a final judgment and an order, counsel contends that it must follow that the action of the court on December 3, 1930, was an order, and not a final judgment from which an appeal may be taken. In support1 of their contention it is said, quoting from Hunter v. Hunter, 111 Cal. 261, 43 P. 756, 31 L. R. A. 411, 52 Am. St. Rep. 180, that the allowance of alimony is an'incident to an action for a divorce, and by analogy the question of the custody of children is an incident to a divorce, hence it must follow that the ruling of December 31 must be an order and not a judgment.
¶30 In Lake v. Lake, 17 Nev. 230, 30 P. 878, 879, which was a suit for a divorce and alimony, the court said: “That appellant had the right to appeal from a specific part of the whole judgment — the portion against her— without disturbing the other portions in her favor, we have no doubt.”
¶31 In Lake v. Bender, 18 Nev. 361, 4 P. 711, 7 P. 74, it was held that where a divorce was first granted and subsequently the issues as to the property were determined, the court had authority to entertain a motion for a new trial as to the property rights. No motion for a new trial was made as to the divorce, but was made as to property rights. The motion was denied, An appeal was taken, and though the court recognized that the question of property rights was one incident to the divorce suit, it held that the right to move for a new trial and to appeal existed. Thus we see that our own court long ago took a position that an appeal might be taken upon that portion of a case which was incident to the main issue.
¶32 Counsel contend that the views expressed in our former opinion are contrary to our holding in Hough v. Nevada Treasure M. Co., 53 Nev. 333, 300 P. 948. We *30 do not think so. In that case the order appealed from was one vacating a final judgment, leaving the case standing to be tried upon the issues made by the pleadings, whereas in the instant matter such was not the fact.
¶33 Nor do we find anything in the opinion of Nevada First National Bank v. Lamb, 51 Nev. 162, 271 P. 691, 692, contrary to our previous holding. It is true that in that case we said: “It is a well-known general rule that there can be but one final judgment in a case.” We thank counsel for calling our attention to the opinion mentioned. Their only mistake lies in the fact that they did not read far enough, for we quoted therein from an earlier Nevada case, Perkins v. Sierra Nevada Silver Min. Co., 10 Nev. 405, as follows: “A judgment or decree is final that disposes of the issues presented in the case, determines the cost, and leaves nothing for the future consideration of the court. When no further action of the court is required in order to determine the rights of the parties in the action, it is final; when the cause is retained for further action it is interlocutory.”
¶34 Thus it appears that we recognized the correct rule to be that a judgment is final which disposes of the issues and leaves nothing for the future consideration of the court, and that when the cause is retained for further action it is interlocutory.
¶35 We cannot see why the same rule would not apply to the question of the custody of the children.
¶36 We must not overlook the fact that the practice is different in divorce suits involving the question of alimony and custody of children, than in an action at law. In the later there is no such thing as amending or modifying a judgment once rendered, except as the result of an appeal, while in divorce suits authority may be retained to modify the decree, or order as our statute calls it, as to alimony and custody of the children.
¶37 We do not wish to be understood as holding that a decree might not be modified as to the custody of children even if the authority to do so were not reserved. On this point we express no opinion.
¶38 We fail to see the force of the contention relative to the entry of the order denying the motion for a new trial. The entry of the order was a ministerial act of the clerk. In our former opinion we said the court did not enter the order, whereas we should have said the clerk did not enter it.
¶39 Petition denied.