Opinion
May, 1905.
Order modified by reducing the amount of alimony allowed to five dollars per week, which latter sum is allowed upon condition that the plaintiff within ten days after service of a copy of this order, together with notice of entry thereof, file a stipulation consenting, nunc pro tunc, to an order of reference in this action; said order is further modified by striking out the provision for an order of reference herein, unless within ten days after service of a copy of this order, together with notice of entry thereof, the defendant and the corespondents who have answered make and file stipulations consenting, nunc pro tunc, to an order of reference herein, and as so modified the order appealed from is affirmed, without costs of this appeal to either party; but in case the plaintiff fails to file such stipulation the order appealed from is amended by striking out the allowance of all sums to her by way of alimony. All concurred, except Williams and Stover, JJ., who dissented on the ground that the court had no power to refer the case because no motion for a reference was made, no notice of intention to have a reference was given to the corespondents, that there was no consent to the order directing the reference by either of the corespondents, the plaintiff or the defendant, and that all the parties have an absolute right to a trial by jury. Williams, J., also dissented on the further ground that under the circumstances of this litigation and of the former litigation between the parties no allowance of alimony should be made, and that the amount allowed for expenses should not exceed $100.