Bohl v. Bohl

• Court: South Dakota Supreme Court
• Citation: Bohl v. Bohl, 72 S.D. 257, 32 N.W.2d 690 (S.D. 1948)
• Decision Date: 03 June 1948
• Docket Number: 8959.
• Parties: BOHL v. BOHL.

32 N.W.2d 690

72 S.D. 257

BOHL v. BOHL.

No. 8959.

Supreme Court of South Dakota

June 3, 1948

Louis H. Smith, of Sioux Falls, for appellant.

Stordahl May & Boe, of Sioux Falls, for respondent.

RUDOLPH, Judge.

The decree of the circuit court awards to the plaintiff, the wife, a divorce from the defendant, the husband. There is no appeal from this portion of the decree. The controversy in this court relates to the property division made by the trial court. The plaintiff has appealed contending that the trial court failed to award her the amount of property to which she is entitled under the facts and circumstances disclosed by the record.

The parties were married on December 23, 1939. There are no children of the marriage. Plaintiff, prior to her marriage, was employed as a stenographer and book-keeper at a salary of $90 a month. The defendant owned and operated a package liquor store and tavern known as the Silver Dollar in partnership with another man. About a year after the marriage the defendant acquired the entire interest of the partnership and Mrs. Bohl commenced working in the tavern or store. She worked generally from noon until midnight assisting with the trade and also kept the books and accounts. The store prospered and permitted the accumulation by the parties of considerable money and property. At the time of the marriage the defendant owned a home in Sioux Falls at 1214 W. 7th Street. The value of this home was not gone into at the trial but defendant alleged in his answer that its value was $6,000. Defendant also owned the Silver Dollar Tavern and some cash and bonds the amount of which is somewhat in dispute. In the year 1946 the parties built a new home at 1608 S. Summit Ave. where they continued to live until their separation before the trial. Such furniture as could be used from the W. 7th Street home was taken to the new home and some of the old furniture was sold and new furniture purchased and it appears that at the time of the trial the new home was completely furnished with furniture, linens, blankets, utensils, dishes and household effects of all kinds necessary for this home. This new home was built at a cost of something over $11,000 and had a value at the time of the trial of $13,500. The furniture was of a value of $1,500. In addition to the home in which the parties lived there had been acquired a small house at 714 S. Conklin, Sioux Falls, which was of a value of $3,000 to $3,200 and rented for $20 a month. The parties also owned at the time of the trial several bonds of a face value of $2,250 and of a cash value of $1,723.50, a 1937 Buick automobile at the value of $400, the Silver Dollar bank account of $1,728, defendant's personal account of $1,500 and a savings account of $132.35 and $352.80 in cash. At the trial the testimony disclosed that the Silver Dollar store had a value from $6,000 to $8,500 although it was alleged in defendant's answer that the store had a value of $9,000. From this property the trial court awarded the plaintiff the house located at 714 S. Conklin, with a value fixed at $3,000, the savings bonds with a cash value of $1,723.50, the automobile with a value of $400, a Magnavox radio which cost $411 and $2,500 in cash to be paid at the rate of $200 per month. The total of the property thus awarded plaintiff amounts to $8,034.50. The value of all of the property of the parties at the time of the trial after deducting $1,600 of indebtedness was roughly from $34,000 to $37,000 depending upon the value of certain items especially the liquor store. It appears that the defendant was disabled in World War I and has been drawing compensation at the rate of $50 a month. However, it further appears that his disability is not such that it interferes with his work in the liquor store and while he testified he would not be able to do hard physical work, he nevertheless carries on a normal life. The plaintiff is in good health and capable of carrying on her former occupation as a stenographer and bookkeeper. This statement of facts is sufficient for our present purpose.

Respondent has moved to dismiss the appeal. This motion is based upon a showing that since the entry of judgment appellant has reduced to cash the bonds of the face value of $2,250, which bonds were held in the name of the plaintiff and awarded to her by the court's decree, that appellant and her former counsel accepted the payment of $750 attorney fee awarded by the decree, and appellant has the possession and use of the automobile. Respondent relies upon the general holding that one who accepts benefits under a decree or order of the court is estopped from appealing therefrom. Male v. Harlan et al., 12 S.D. 627, 82 N.W. 179; Lounsbery v. Erickson, 16 S.D. 375, 92 N.W. 1071; Silvius v. Brunsvold, 32 S.D. 252, 142 N.W. 944; Pithan v. Wangler, 29 S.D. 549, 136 N.W. 1084, Schmuck v. Sampson, S.D., 32 N.W.2d 567. However, this general holding is not without qualification. The qualification is stated in 2 Am.Jur., Appeal and Error, § 215, as follows:

'The general rule * * * is subject to an exception which has been recognized and allowed in specific instances and a great variety of cases, enough, perhaps, to give rise to a new rule that where the reversal of a judgment cannot possibly affect an appellant's right to the benefit secured under a judgment, then an appeal may be taken, and will be sustained, despite the fact that the appellant has sought and secured such benefit. Thus, it is possible for the appellant to obtain a more favorable judgment in the appellant court without the risk of a less favorable judgment from a new trial of the whole case there or in the lower court, then the acceptance of what the judgment gives him is not inconsistent with an appeal for the sole purpose of securing without a retrial of the whole case, a decision more advantageous to him.'

Appellant is in this court asking for relief in addition to that awarded her by the trial court. The property which she is alleged to have accepted under the decree is personal property only, and is not in such an amount that it is probable that less might be...