Ritter

An affidavit was filed setting forth certain matters alleged to have occurred since the twentieth day of June, 1928, and since entry of an interlocutory decree of divorce, in which interlocutory decree the custody of three minor children had been fixed and determined. It appears that the trial court issued an order directing the plaintiff and petitioner herein to show cause why the custody of said minors should not be changed, and that that hearing is now pending in the Superior Court and is the matter toward which the writ is directed.

The trial court made an order as to the custody of the children first on May 23, 1928, and thereafter, on the thirtieth day of June, 1928, an interlocutory decree of divorce was entered in said action, which decree in terms recited the same conditions as to the custody of the children as the order of May 23, 1928. That thereafter the defendant filed notice of appeal from said interlocutory decree and from the whole thereof, on September 19, 1928.

The contention between the parties upon this, hearing is as to whether or not said notice of appeal stays the hands of the trial court in said action, the respondent court contending that there is no…