Arnold v. Arnold

• Decision Date: 28 January 1933
• Docket Number: No. 14412.,14412.
• Citation: 183 N.E. 910,95 Ind.App. 553
• Parties: ARNOLD v. ARNOLD.
• Court: Indiana Appellate Court

95 Ind.App. 553

183 N.E. 910

ARNOLD

v.ARNOLD.

No. 14412.

Appellate Court of Indiana, in Banc.

Jan. 28, 1933.

Appeal from Hancock Circuit Court.

Divorce action by Charles F. Arnold against Anna C. Arnold. From a judgment for plaintiff, defendant appeals. On motion to dismiss appeal.

Appeal dismissed.

Chauncey W. Duncan, of Rushville, and Owen S. Boling, of Indianapolis, for appellant.

Charles L. Tindall, of Greenfield, for appellee.

CURTIS, C. J.

This is an appeal from a judgment of the Hancock circuit court in an action by the appellee against the appellant for a divorce, custody of the children of the parties, and to set aside certain conveyances of real estate. The complaint was in one paragraph, which was answered by a general denial. Upon the issues thus joined the cause was submitted to the court, who rendered a judgment granting an absolute divorce to the appellee and giving him the custody of the children of the parties and adjudicating the property rights between the appellee and the appellant. The appellant at the proper time filed a motion to modify the said judgment, which was overruled and an exception duly taken. A motion for a new trial was seasonably filed and overruled and an exception reserved. From the judgment as entered, the appellant prayed and perfected this appeal, assigning as the errors relied upon for reversal the following: (1) The court erred in overruling the appellant's motion for a new trial; (2) the court erred in overruling appellant's motion to modify the judgment. The errors relied upon for reversal are the same as those stated in the assignment of error.

The motion for a new trial contains five alleged causes as follow: (a) The decision of the court is not sustained by sufficient evidence; (b) the decision of the court is contrary to law; (c), (d) alleged defects in the affidavit filed with the complaint; (e) that the court did not have jurisdiction of the subject-matter of the action.

The appellee has filed a verified motion to dismiss the appeal and in support thereof has filed his affidavit, which, omitting formal parts, is as follows:

“Charles F. Arnold being duly sworn upon oath says that he is the Appellee in the above entitled action. That he recovered a judgment against the appellant for a divorce in the Hancock Circuit Court of the State of Indiana, from which judgment the appellant Anna C. Arnold appealed to this Court, which said appeal is now pending for determination herein. That upon the 13th day of December, 1932, said Appellant Anna C. Arnold applied for and received license to marry one Charles W. Ravalee in the office of the clerk of the Fayette Circuit Court in Fayette County Indiana. That pursuant to said marriage license the said Appellant Anna C. Arnold did lawfully marry the said Charles W. Ravalee upon the 14th day of December, 1932 and has even since been and still is living with the said Charles W. Ravalee in the relation of husband and wife. That by so doing the Appellant Anna C. Arnold has taken and accepted the benefit of such judgment of the Hancock Circuit Court divorcing the Appellee from her, has thereby recognized the validity of said judgment and has rendered it impossible for this Court to restore the relation as husband and wife between the Appellant and Appellee by any decision of this cause on appeal.

“Wherefore, the Appellee prays that this appeal be dismissed and he...