Tuttle v. Tuttle
| Decision Date | 20 December 1909 |
| Citation | 124 N.W. 429,19 N.D. 748 |
| Court | North Dakota Supreme Court |
Action by William P. Tuttle against Louise J. Tuttle. Judgment for plaintiff, and defendant appeals. On motion to dismiss. Dismissed without prejudice.
Cochrane & Bradley and Newton & Duliam, for appellant.
Ball Watson, Young & Lawrence, for respondent.
ELLSWORTH, J., disqualified.
This is a motion to dismiss an appeal taken by the defendant. Plaintiff brought an action for divorce against the defendant, who appeared and answered, denying the allegations of the plaintiff's complaint, and demanding a divorce in her favor. In her prayer for relief she demanded alimony in the sum of $ 300 per month during the pendency of the action sufficient means to pay counsel fees and procure witnesses and evidence to properly defend and prosecute the action, and the necessary funds to defray her expenses for transportation from Chicago to Bismarck, and that she be granted an absolute divorce, and be awarded her just and equitable part of the property accumulated by defendant and plaintiff. On the 27th day of December, 1907, in response to a motion made by defendant, supported by affidavit, demanding that the plaintiff be ordered to pay her attorneys a reasonable sum of money to defray the expenses of the action, including procuring witnesses from the city of Chicago, and other places, and for the taking of depositions, and for a further sum of alimony in the sum of $ 500 per month during the pendency of the action, the court entered an order directing the plaintiff to pay her the sum of $ 300 on the first day of each month, commencing on the first day of January, 1908 during the pendency of the action, and the further sum of $ 250 to Cochrane & Taylor for attorneys' fees and expenses already incurred in the action. The sums specified were duly paid. The action came to trial in December, 1908, and resulted in a decree being entered granting the plaintiff a divorce. No reply was served to defendant's cross-complaint or counter-claim, but an inspection of the records leads to the conclusion that the suit was tried on the theory that one had been served, and that thereby defendant waived a reply. Included in the findings and judgment is a provision whereby plaintiff agreed, and was required, to pay defendant the sum of $ 300 per month toward her support. The decree also requires plaintiff to pay the attorneys for the defendant the sum of $ 750 further attorney's fees and the sum of $ 500 to pay witness' fees and other expenses which had been incurred in the conduct of the defense. The decree was entered on the 9th day of February, 1909. Subsequently a case was settled, and an appeal taken and a new trial of the entire case demanded.
The motion to dismiss the appeal states the grounds as follows "(1) That the said Louise J. Tuttle, defendant and appellant, is precluded and estopped from appealing from the judgment of the said district court above referred to and more specifically referred to in the affidavit hereto attached, in that she has taken, received, and accepted benefits under the said judgment of the said district court, and has enjoyed, and is enjoying during the pendency of said purported appeal, advantages, benefits and moneys granted to her under the judgment of said district court; (2) that the defendant and appellant, the said ...
To continue reading
Request your trial