Montgomery v. Montgomery, 7732

• Decision Date: 11 February 1958
• Docket Number: No. 7732,7732
• Citation: 88 N.W.2d 104
• Parties: Ketty MONTGOMERY, Appellant, v. Melvin Mitchell MONTGOMERY, Respondent.
• Court: North Dakota Supreme Court

Page 104

88 N.W.2d 104

Ketty MONTGOMERY, Appellant, v. Melvin Mitchell MONTGOMERY, Respondent.

No. 7732.

Supreme Court of North Dakota.

Feb. 11, 1958.

Syllabus by the Court

Where a plaintiff in an action for separation from bed and board, in which the defendant under his counterclaim is granted a divorce, receives, accepts, and retains the benefits of the judgment and decree entered in the action, her attempt to restore the status quo of the parties by tender of restitution of the property that she received under the judgment, made after she is confronted with an application to dismiss her appeal in the action, does not obviate her waiver of her right to appeal from said judgment and decree.

Walter O. Burk, Williston, for appellant.

Bjella, Jestrab & Neff, Williston, for respondent.

JOHNSON, Judge.

This is an application made by the respondent to dismiss an appeal. It was submitted to this court upon an order to show cause on December 16, 1957. The order to show cause required the appellant to show cause why an order should not be made dismissing her appeal herein.

The appellant sought a separation from bed and board from the defendant and for a division of the property of the parties and for her separate support and maintenance. The defendant, by way of counterclaim in his answer asked for a divorce upon the ground of extreme cruelty. The trial court on April 18, 1957, entered a judgment in the above entitled action granting a divorce to the defendant and divided the property of the parties, allowing the plaintiff, Ketty Montgomery, to retain the household goods, furniture, and furnishings, oriental antiques and curios, furs, clothing, wearing apparel and other personal effects in the home of the parties. The dwelling house of the parties, located in the City of Williston, was granted to the plaintiff. It is described as Lot 6, Block 6, Henry H. Sorenson Third Addition to the city of Williston according to the plat thereof on file in the office of the Register of Deeds of said county. The judgment further provided that the plaintiff was entitled to a cash sum of $500 for the purpose of enabling her to discharge her outstanding obligations. This was to be payable $200 not later than May 1, 1957, $150 not later than June 1, 1957, and $150 not later than July 1, 1957.

On May 8, 1957, the respondent, Melvin Mitchell Montgomery, pursuant to the judgment by quitclaim deed transferred to the appellant the dwelling house located on Lot 6, Block 6, Henry H. Sorenson Third Addition to the City of Williston. The deed was recorded June 4, 1957, in Book 128 of Deeds at Page 17, Williams County, North Dakota. On April 26, 1957, the defendant issued his check for $200 to the plaintiff. On May 28, 1957, he paid the plaintiff another $150 by check. On June 29, 1957, he paid plaintiff the remaining $150 due on the cash payment required by the judgment. The plaintiff received, accepted and cashed these checks. She presented them for payment promptly after each check was issued.

On August 22, 1957, the appellant mortgaged the dwelling house that she had received from the defendant to one Fekla Taylor for $4,260. This mortgage was recorded the same day of its execution, in Book 273 of Mortgages on Page 235. The mortgage was executed by the plaintiff and acknowledged before her present attorney, a notary public in Williams County, North Dakota. In her reply to the application to dismiss this appeal she offered to procure a release of the mortgage. This release was obtained by her on or about the 10th day of January 1958, and was recorded in the office of the Register of Deeds, Williams County, North Dakota, on January 13, 1958, and is there recorded in Book 275 of the Satisfactions on page 301. The appellant has tendered restitution of all of the benefits that she received under the judgment. She has tendered the respondent a quitclaim deed to the premises that he deeded to her. She has offered to repay the $500 plus interest, in the sum of $515.68, and says that she has sent a cashier's check to the defendant in that amount.

The plaintiff was born in Siberia. She is of Mongolian extraction. She met the defendant in China and came to the United States in 1947. She asserts that she has practically no knowledge of American customs, very little, if any, knowledge or comprehension of the operation of the American judicial system and has inadequate knowledge of the English language.

At the trial of the divorce action she was represented by a Williston attorney. She says that he did not advise her that it was improper for her to cash the checks that she received from the defendant; that she did not have the remotest idea that the acceptance of the checks and the property awarded to her under the judgment would jeopardize her right of appeal. She also asserts that she did not know that she had received a quitclaim deed and that she never saw the deed; that she knew nothing of its recording. But it is apparent that she must have known, or it must be presumed that she knew of its recording, as she mortgaged the premises to Fekla Taylor as her property and asserts therein: 'that she has good right to convey the same * * *.' Her attorney at the time of the trial of this action asserts that he never saw the quitclaim deed given by the defendant to the plaintiff....