McCaleb v. McCaleb

JAMES, J.

In this action for divorce there are a complaint and cross-complaint and answers made to each. The case advanced to trial and evidence was introduced; whereupon the court made its findings of fact and judgment decreeing that neither party was entitled to a divorce.

Included in the decree was a provision giving to the wife alimony in the following terms: “That while the plaintiff and defendant continue to live separate and apart, that the defendant shall pay to the plaintiff the sum.of ten dollars per month from and after the entry of this decree. That the payment of said allowance may be secured by a valid lien on any of the community or separate property of the defendant as the plaintiff and defendant may agree upon, and in case they cannot agree upon such security and lien, then this court shall determine what property the defendant shall convey in

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trust to a trustee selected by this court, sufficient of said separate or community property as security for the payment of said allowance until the further order of this court. ’ ’ The plaintiff, following the entry of judgment, proceeded to give notice of her intention to move for a new. trial. Thereafter, on October 28, 1913, the defendant gave notice of his motion to have an order made denying and dismissing the plaintiff’s motion for a new trial on the ground that plaintiff had accepted the payments of ten dollars per month for four months next preceding the date of the notice. This motion was supported by the uncontradicted affidavit of the defendant showing the payments to have been made and received as stated. Defendant’s motion to dismiss plaintiff’s proceeding for a new trial was denied, and this appeal was taken from that order. -

The point urged by the appellant is that the plaintiff having accepted the benefit of the judgment in so far as it was in her favor, was therefore estopped to have the judgment reviewed on appeal, and that she thereby waived her right to an appeal. Primarily, this contention rests upon the well-established rule that where a party accepts satisfaction of a judgment, the judgment then passes beyond review at the instance of the party accepting satisfaction.

(People

v.