Smith v. Smith, 18602
Decision Date | 21 October 1955 |
Docket Number | No. 18602,18602 |
Citation | 129 N.E.2d 374,125 Ind.App. 658 |
Parties | Mary B. SMITH, Appellant, v. Milton B. SMITH, Appellee. |
Court | Indiana Appellate Court |
C. W. H. Bangs, Huntington, New & New, Indianapolis, Russell T. Keith, Peru, for appellant.
Parry & Barns, Merl A. Barns, Arthur W. Parry, Ft. Wayne, Cole, Wildman & Cole, Russell J. Wildman, Albert H. Cole, Jr., Peru, for appellee.
This is an appeal from a judgment of the Miami Circuit Court in an action by the appellee against the appellant for divorce and determining the property rights of the parties. The sole error relied upon for reversal is the overruling of appellant's motion for a new trial.
Various errors are assigned upon which a reversal of the decree is asked. In view of the conclusion we have reached it seems unnecessary to dwell upon them.
On September 29, 1954, and prior to the oral argument the appellee filed his verified motion to dismiss this appeal, said motion being predicated upon the basis that appellant had accepted and availed herself of certain benefits of the judgment and therefore she was estopped from prosecuting her appeal. At the time of the filing of appellee's motion to dismiss, the court deemed it appropriate and desirable to hear the oral arguments before ruling on the motion, and the ruling on the motion was on the 23rd day of November, 1954, ordered held in abeyance pending the argument on the merits. Since the arguments on the merits we have now concluded that appellee's motion should be sustained and this appeal dismissed.
In the decree of the Miami Circuit Court appears the following entry:
It appears from the appellee's verified motion to dismiss that the appellee did on the 23rd day of February, 1954, in payment of the alimony judgment, execute, for the benefit of the appellant, instruments of transfer of the real estate, the stock and household furniture, farm tools, farm implements and paid the cash, all as ordered by the court, and more specifically a bill of sale for the following items of personal property:
1. 1 Ford Tractor with hydraulic lift and with scraper blade and attachment
2. 1 Avery disc
3. 1 Worthington mower
4. 1 Tractor drawn Roller
5. 1 Montgomery Ward Sprayer
6. 1 Extension ladder
That said bill of sale was executed to the appellant and deposited with the Community State Bank of Huntington as escrow agent.
That on or about the 28th day of April, 1954, appellant sold the above described personal property to a neighbor, receiving from him in consideration therefor cash in the sum of $1,125 and executed a bill of sale for each and all of said items; that appella...
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