Larabee v. Larabee

• Decision Date: 22 March 1935
• Docket Number: 28742.
• Citation: 259 N.W. 520,128 Neb. 560
• Parties: LARABEE v. LARABEE.
• Court: Nebraska Supreme Court

259 N.W. 520

128 Neb. 560

LARABEE v. LARABEE.

No. 28742.

Supreme Court of Nebraska.

March 22, 1935

Syllabus by the Court.

1.Facts showing that appellant has lost the right to prosecute his appeal by voluntarily accepting payment of that part of the judgment in his favor may be brought into the record in the supreme court by a motion to dismiss and an additional transcript.

2.A litigant cannot voluntarily accept payment of that part of the judgment in his favor and afterward prosecute an appeal from that part of the judgment against him.

Appeal from District Court, Lancaster County; Frost, Judge.

Action for divorce by Jared Franklin Larabee against Mildred Cade Larabee, in which defendant in her answer also sought a divorce.From a judgment granting defendant a divorce and requiring plaintiff to pay certain expenses but denying defendant permanent alimony, defendant appeals.

Appeal dismissed.

Burkett, Wilson, Brown, Wilson & Van Kirk, of Lincoln, for appellant.

Harry R. Ankeny and Jay O. Rodgers, both of Lincoln, for appellee.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

ROSE Justice.

Jared Franklin Larabee, plaintiff, sued his wife, Mildred Cade Larabee, defendant, for a divorce on the ground of extreme cruelty.In an answer to the petition, defendant denied the cruelty charged by plaintiff and applied for a divorce from her husband on the ground of his extreme cruelty to her.Upon a trial of the cause the district court dismissed the petition of plaintiff and granted defendant a divorce.The decree denied defendant permanent alimony, but contained a judgment against plaintiff for the following items: Expenses paid by defendant for upkeep of the home and for clothing for herself and her minor daughter, $119.58; unpaid temporary alimony previously allowed by the court, $23.31; fee for defendant's attorney, $100.In addition plaintiff was required to pay the costs.Defendant appealed.

A motion by plaintiff to dismiss the appeal on the ground that defendant accepted the parts of the judgment in her favor was at first overruled and she was permitted to argue the merits of her claim for permanent alimony.Upon a renewal of the attack on the appeal, the motion and a supplemental transcript accompanying it have been re-examined.Facts showing that an appellant has lost the right to prosecute his appeal by voluntarily accepting payment of part of the judgment in his favor may be brought into the record in the supreme court by a motion and an additional transcript.The transcript of the proceedings and of the judgment below was filed in the supreme courtFebruary 11, 1933.An additional transcript accompanying the motion shows that on February 27 1933, the attorney's lien was paid and released and that defendant, appellant herein, made...