Williams v. Williams

• Decision Date: 21 November 1896
• Citation: 69 N.W. 47,6 N.D. 269
• Court: North Dakota Supreme Court

69 N.W. 47

6 N.D. 269

EDWARD L. WILLIAMS v. KATE L. WILLIAMS

Supreme Court of North Dakota

November 21, 1896

Appeal from District Court, Cass County; McConnell, J.

Action by Edward L. Williams against Kate L. Williams for divorce. Judgment for plaintiff, and defendant appeals.

Dismissed.

Appeal dismissed.

Newman Spalding & Phelps, for appellant.

Ball Watson & Maclay, for respondent.

OPINION

CORLISS, J.

The motion to dismiss appeal must be granted. The appeal is from a judgment rendered in an action for divorce. Findings of fact and conclusions of law having been waived, the court made its order for judgment in the following form "Ordered that a final decree be entered herein, absolutely vacating and dissolving the bonds of matrimony formerly and now existing between the parties hereto, and absolutely divorcing said parties each from the other. It is further ordered that said marriage between the parties hereto, which was solemnized at the City of New York, State of New York, in the month of July, 1888, be absolutely dissolved, and that said parties be freed and released from any and all of the rights, duties, and obligations resulting from their said marriage. It is further ordered that the defendant is justly entitled to receive the sum of fifty-two hundred ($ 5,200) dollars, of and from the plaintiff herein, as and for her temporary and permanent alimony, support money for the past and future, counsel fees, and for any and all other purposes whatsoever; that such sum of $ 5,200 is the total proportion of all of plaintiff's property to which she is entitled, either in law or equity, and that, upon payment of such sum, said plaintiff shall stand forever released from any and all claims of defendant against him in that behalf; that the plaintiff herein be required to pay to said defendant the sum of $ 5,200, in full payment, discharge, and satisfaction of all of the claims aforesaid. Let judgment be entered accordingly." The final judgment entered by the clerk in the judgment book contained no provision relating to the sum of $ 5,200 ordered to be paid by the plaintiff to the defendant. The explanation of this appears to be the fact that, at the time the order for judgment was rendered, the plaintiff paid this sum to the defendant, who by an instrument in writing acknowledged the satisfaction of the money portion of such order. Despite the fact of such payment, the defendant might have insisted that the clerk incorporate in the judgment these provisions of the order. The fact that she had received the sum ordered paid to her would not have destroyed her right to claim that the judgment so entered should embody these features. It would merely prevent her compelling a second payment of the sum awarded her. While, technically speaking, the judgment itself did not give the appellant the right to receive the sum paid to her, yet it is plain to be seen that the consideration for the order that she be allowed such sum is the other provision of the order relating to the subject of divorce. These two provisions of the order are bound up together. Each is dependent on the other. It is true that the court might have awarded the defendant this sum independently of the granting of a divorce in favor of either party. But it is clear that this is not what was done. The language of the order forbids such a construction. If the order had granted alimony only up to the time it was made, and had not provided for the future, there might be some force in the appellant's contention. But the order goes further. It in effect declares that, as part of the decision of the court that the plaintiff should have a divorce as against the defendant, the court, on the assumption that the divorce is to remain undisturbed, awards the defendant a gross sum for her support, on the theory that she is to be no longer his wife. The language of the order is: "Ordered that the defendant is justly entitled to receive the sum of fifty-two hundred ($ 5,200) dollars, of and from the plaintiff herein, as and for her temporary and permanent alimony, support money for the past and future, counsel fees, and for any and all other purposes whatsoever; that such sum of $ 5,200 is the total proportion of all of plaintiff's property to which she is entitled, either in law or equity, and that, upon payment of such sum, said plaintiff shall stand forever released from any and all claims of defendant against him in that behalf; that the plaintiff herein be required to pay to said defendant the sum of $ 5,200, in full...