Smythe v. Smythe

• Decision Date: 20 December 1923
• Docket Number: 18045.
• Citation: 127 Wash. 566,221 P. 297
• Court: Washington Supreme Court
• Parties: SMYTHE v. SMYTHE.

221 P. 297

127 Wash. 566

SMYTHE v. SMYTHE.

No. 18045.

Supreme Court of Washington

December 20, 1923

Department 2.

Appeal from Superior Court, King County; Card, Judge.

Action for divorce by Harry J. Smythe against Sophia M. Smythe. From an interlocutory judgment for plaintiff, defendant appeals. Affirmed.

John F Dore and H. A. P. Myers, both of Seattle, for appellant.

Albert D. Martin, of Seattle, for respondent.

BRIDGES J.

The trial court entered an interlocutory order to the effect that the plaintiff was entitled to a divorce from the defendant and making a division of the property of the parties. From this judgment the defendant appealed. After the case was argued here upon its merits, the trial court, upon the motion of the appellant, entered a final decree of divorce. At that time six months from the entry of the interlocutory order had expired. Based upon this fact, the respondent now moves that the appeal be dismissed, taking the position that the appellant, by procuring the trial court to enter the final decree, has abandoned her appeal.

The motion to dismiss must be denied. Section 988 Rem. Comp. Stat., provides for the interlocutory order, and section 988-1 provides that 'at any time after six months have expired, after the entry of such interlocutory order and upon the conclusion of an appeal, if taken therefrom, the court, on motion of either party, shall confirm such order and enter a final judgment granting an absolute divorce, from which no appeal shall lie.' The lower court was without jurisdiction to enter the final decree. By the appeal this court had obtained and the lower court had lost jurisdiction. For the purposes of this motion we must therefore treat the final decree made by the trial court as a nullity. Its action was in direct violation of section 988-1. We must therefore dispose of the case upon its merits.

The appellant does not seriously question the correctness of the interlocutory order, in so far as it adjudged that the respondent was entitled to a divorce, but contends that there was an unjust division of the property. The court awarded to the respondent such real and personal property as belonged to the parties, of the value of $1,200 to $1,500. He also required the respondent to pay $50 a month for six months to the appellant. There is no issue of the marriage.

The trial court had the parties before it; knew better than we can their physical and...