Deacon v. Deacon

RICHARDS, J.

The respondents have moved this court to dismiss the appeal of the defendant Deacon upon two grounds: First, That the appeal was not taken within the period prescribed by law. Second. That the judgment

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from which the appeal has been taken was one entered by stipulation of the parties and was a consent judgment, and that for that reason the appellant has waived his right of appeal. The facts as shown by the record upon which the respondents predicate their first ground of the motion, namely, that the appeal was taken too late, are these: The action is one prosecuted by the plaintiff for an accounting as to the proceeds and revenue derived from certain real property known as the Ivy Apartments, and for the partition of said real estate and other property among the parties to this action according to their respective rights and interests therein. This action is the aftermath of a certain action for divorce' between the plaintiff herein and the defendant D. A. Deacon, in the course of which a certain agreement in writing was entered into effecting a property settlement between the parties to said divorce proceeding and which was carried into the decree therein. The complaint in the present action was filed on June 11, 1925. The answer of the defendant D. A. Deacon thereto was filed on June 22, 1925. A. T. Roark, who was sued and served with process under a fictitious name, appeared and filed an answer and cross-complaint on July 3, 1925, and to which the defendant D. A. Deacon filed his answer on July 18, 1925. The cause came on for trial upon the issues thus made up, whereupon the trial court on March 9, 1926, filed its findings of fact and conclusions of law, and (also filed its interlocutory decree in conformity therewith, (decreeing an accounting and partition, providing for the •appointment of a referee to take such accounting and report 'Upon the same and upon such partition to the court. Thereafter and on April 6, 1926, the defendant D. A. Deacon gave and filed his notice of intention to move for a new trial, which motion, however, was never brought on for hearing. The referee filed his report on June 21, 1926, whereupon the plaintiff and the cross-defendant Roark gave notice of a hearing thereon and of a motion for the adoption thereof and for the entry of a final judgment in accordance therewith, which motion came on for hearing before the court on June 28, 1926, whereupon the trial court made and entered its final decree of accounting and partition, wherein it was recited that the report of the referee as modified and amended by the court had been approved.