*1 CUNNINGHAM, SYLVIA H. Appellant v. FRANCIS CUNNINGHAM, J. Respondent. No. 3307
May 11, 1940. 102 P. Goldwater, Appellant. Leon Shore and Bert Heward, Respondent. Harlan L.
OPINION
By Court, Ducker, J.: arising
Two motions are before us out of a divorce proceeding by respondent. Appellant instituted cross- complained granted and was a decree of divorce on the cruelty. of extreme The first motion has been prosecute made the wife for allowances to concerning specific parts of the decree awards, and the second motion has been made appeal. They
husband to dismiss- the were heard in hearing. that order at the same The motion for allowances must be denied for the *2 appear appeal it not that an reason does been perfected chapter accordance with section 1937, page juris 56. without Statutes This court diction to order allowances until an has been ; perfected. Lamb, (2d) P. Lamb v. 55 Nev. 659 Hannah, (2d) 696. Hannah There proof presented at the of the motion was no allowances, filed that a notice of had been apt undertaking, and an and served time its statu tory equivalent, deposited apt or filed in time. ordered that motion for allowances be and hereby prejudice appel- same is denied without filing, serving presenting another motion lant’s therefor within a reasonable time. ruling that a on the motion to
It is further ordered expira- until' after the dismiss the be reserved tion of such time. AND TO ALLOWANCES MOTION
ON SECOND MOTION EOR APPEAL DISMISS August 28, 105 P. 398. *3 Appellant. Goldwater, for Bert Respondent. Heioard, L. Harlan OPINION Court, ÜUCKER, By J.: denied without herein was motion for allowances serving presenting filing, appellant’s prejudice to Rul- time. within a reasonable motion therefor another appeal was reserved ing motion to dismiss on the Sylvia expiration H. Cun- of that time. until after Cunningham, ningham v. Francis J.
P.(2d) denied for reason for allowances was
The motion hearing that an proof presented at no allow- A motion for perfected. new appeal had been stipu- by appellant and it has been been made ances has may of the motion parties the merits lated for- evidence adduced same be considered *4 hearing. mer appellant that an affidavit of appears from the
It of the duly perfected. The affidavits appeal has been respective that motions show support their parties in of divorce, granting appellant a court, decree its property, known certain residence to her awarded Nevada, Sparks, found property, located in the Shekell 1936 Chevrolet property; a separate certain her to be automobile, Sedan community property, found to be and alimony month, per of sum $50 continue for period a Respondent of ten months. was awarded cer- dwelling tain parties real estate and a of the house thereon, together Sparks, situated with its contents furnishings, and community property. found to be The decree day February was rendered on the 9th appeals only.
She from the two latter awards motion to dismiss will now be considered. upon It is made that waived has appeal, taking estopped and is from appeal by voluntarily accepting receiving portions and appealed from. respondent’s
From support affidavit in of his motion appears that, pursuant it decree, paid, to the he has voluntarily accepted, has two installments of alimony; pursuant said paid, he has that to the order attorneys, trial court for the benefit of her $100, voluntarily sum of which has been received and accepted them; immediately her and that after the entry decree, appel- delivered to automobile, lant the Nevada title certificate to the said accepted by her; which was that had the she certificate of title and automobile transferred own name state; department the motor vehicle that paid therefor, she has the transfer fee on writ- application signed by ten herself to be a caused issued license; appellant, 1940 automobile since the ren- decree, improvements dition of the has caused to be upon made Shekell so-called awarded to her, plumbing permit and that she has taken out a plumbing building improvements property, on said permit remodeling authorizing premises; work said on covering city premises, permit which electrical said improvements, remodeling and construction work now construction, completed process will either testimony appears cost not less than $500. at the she borrowed the s.um $219.42
196 argued the automobile. that the affidavit and testi- is mony respect acceptance by appel- an in this show such decree, lant of under the that a dismissal benefits appeal her must follow. are not minded and think that the motion
We
so
legal impediment
should be denied. No sound reason or
prosecute
why
appellant may
-the
not
her
occurs to us
decree, being
property parts
appeal
dis
from the
may appeal
party
A
from the whole
satisfied therewith.
1935,
90,
judgment.
any specific part
Stats.
c.
of the
198;
Co.,
172,
11,
197,
pp.
State v.
P. R.
Nev.
sec.
C.
21
878;
1109;
Lake,
230,
225,
P.
Lake v.
17 Nev.
30
26 P.
taking
Id.,
361,
711,
A review this court made, namely, complaint about which no is the decree awarding granting divorce, and the property mentioned. When the is the real general decree, judgment, part only order or subject part appealed from not not rule is that S., Appeal 1472. See review, and Error sec. 5 J.C. Dodds, Valley 6 M. Co. v. Nev. Conse Meadow estopped by the fact that quently, not be could own, accepting pleased with her has done as she she taking legal steps necessary to the automobile and name, in her bor 1940 therefor issued have the license remodeling improving rowing money it, placed Respondent not her. town awarded respect. disadvantage by any action in this bring rule that it within the case do not facts of this accept and at the the fruits of one cannot An will prosecute from it. same time conclusion is above. This disclosed lie in the situation authority. ample v. Central Pac. State supported 281; Westlake, Higbie 14 N. Y. Co., supra; v. R. R. 346; 25, Palmer, 27 L. Ed. Ct. Embry 107 U. S. S. v. Reynes Dumont, 130 U. S. S. Ct. 32 L. *6 934; Ed. Victory Co., Merriam v. 321, Placer M. 37 Or. 75, 37, 997; 56 P. 58 P. 60 P. Mellen, Mellen v. 137 N. Y. 606, 545; 33 Estate, N. E. In re 51, Black’s 39 Mont. 554; Cyc. 654; p. Hodges 79 P. 2 Smith, v. 34 Tex. 635, App. Civ. principle applicable S. W. 328. The here is Co., State v. Central Pac. supra. R. R. stated The upon court said: a plaintiff’s “Where reversal the require would him to refund to the defendant money property which he has obtained under the judgment, holding there accept- is reason for that the judgment ance of the benefits the is a waiver of the right Having appeal. to elected to receive the fruits judgment, estopped attempting of the he is to destroy very right the foundation his to receive them. result, where But a reversal would not work this where right his to what he has received would still remain intact, why it is difficult to conceive he should not be now, his, always, be, allowed to take what and is will prosecute and still his claim for more.” might only parts The decree a that reversal awarding dwelling parts house, affect are those furnishings respondent, alimony and contents and appellant. purpose awarded to The to secure more as to those. wife, given
The who has been divorce, support appear to such as to court shall adequate par in view of the financial conditions of the ties, 25, questioned. 1939, 1, cannot be Stats. c. sec. pp. 18, 19; 361, 74; Lake, 4 P. Lake v. Nev. 7 P. Browning Browning, v. 208 Cal. large alimony it
The allowed is not so as to render probable might be allowed on retrial and a less necessary. refund to therefore Her affidavit entirely dependent upon the shows that she is amount living expenses. appellant allowed her for her was Drowning entitled to the amount allowed. at least Browning, here, supra, point. case, well In (an interlocutory divorce wife obtained decree of
decree). settlement entered There had been a assailed, parties which she but which was into took her from all ratified the trial court. She relating judgment except portion to the decree to dismiss on the The husband moved divorce. accepted judg- payments had under that she including attorney fees. found ment costs events, the same at all be entitled to that she would only court said: “It is motion was denied. The have received and where an is shown to cases advantages judgment accepted from'a which such event of a reversal would not be entitled acceptance that her thereof has been *7 appeal.” operate to to defeat the held Moorman, Moorman v. Mich. The case of persuasive respondent as to his is not N. W. cited Moreover, that the court it will be observed contention. accept recognized a under rule one could benefit the that it, appeal when at the same time and right is case here is Such the his to the benefit absolute. decree, prop- alimony part other and the on the Respond- taken. erty no is awards from which be dismissed other ent the insists that should ground of the reasons, made a as none thereof but motion, they considered. will not be is denied.
The motion to dismiss from a of a wife to allowances husband action, in is so well prosecute an a divorce to unnecessary. authority is reference to that established that motion contends opposition In to her good no faith and there is appe'al not taken in appeal will probability that be successful. reasonable alleges that she has In affidavit her good attorney he and that believes she her consulted nothing respondent’s appeal. in We find for an concluding contrary. to the justify to us affidavit faith, merit in an Ordinarily grounds or lack of of bad appeal urged against allowances, be should considered only perfectly when manifest from the record. The record purposes is not before us one and of motion is to obtain such a record. We are therefore not pursue inclined investigation to in advance a futile wife, having perfected motives or merits. The her appeal, proceedings is entitled to have the reviewed way. this court in the usual appellant’s
As the nature of case and affidavit necessity allowances, only question show a as to the amount that should be allowed. This should ability pay be commensurate with the to and a sum awarded that will presenta insure to wife efficient controversy. objections tion of her side Certain testimony taken to the admission of are now overruled.
Eespondent attorney is an law and holds justice peace. justice office of As such peace $2,160 salary per year. Appellant he receives a approximately per avers that he receives the sum of $600 marriage performing ceremonies, annum for and $4,000 approximately per income of annum from his private appended practice. law She affidavit by respondent judi of 31 list filed cases matters state, alleged represented cial districts of he powers of numerous defendants in divorce cases under attorney. alleged She he received 1939 a sum amounting $1,200 beneficiary approximately two *8 policies, polices life insurance insurance which matured on the death of the insured.
Eespondent hearing was examined as a at the witness testimony, denied, appel- and his which not was reduced approximation $4,000 per pri- lant’s of annum from his practice by vate law a considerable sum. We conclude practice that his law 1939 for was not lucrative. She performing marriage averred income that his from cere- approximated per monies the of As sum annum. $600 figure this in his to stated affidavit grossly inaccurate; and that as a matter of fact
during performed the first three of he months marriages approximately twelve for which he received may, opinion per month. that as it we are of the Be $25 marriage performing cere- an income derived from any ordinarily to satis- too inconstant form monies estimating factory He testified basis for allowances. $1,360 insurance that he had received as major applied part money thereof but had beneficiary expenses person to funeral whose was, payment he him- and to the of bills contracted had less and wife. In he stated that he self his affidavit bonds, cash, account, no bank no stocks or than $100 borrowed, upon any money no which could be assets $1,849.63. and was to the extent of debt respondent’s as In view of financial condition shown, $1,000 attorney’s request an fee for above of will be will not be allowed. Instead the sum $150 filing granted purpose. of for that The sum for $25 upon the are fee cannot be allowed. Allowances based ability to fur need of the and the of the husband wife only They neces the same. will be ordered when nish charged filing Only filing sary. may one fee be paid when this we that was court and assume Hannah v. appellant filed allowances. her motion for Hannah, P. requests used as
She to be sum $150 transcript proceed payment for the of the evidence and necessity ings upon support In had the trial. expense her affidavit item of attached to this stenographer evi who took down such letter trial, proceedings in at the in which dence and shorthand original copy of a tran it was estimated that an letter $100, script and two carbon would $90 cost between Respondent objects copies run about would $90 $100. payment item. He claims unneces this it is prepar adopt sary could the method of in that containing exceptions ing substance a bill *9 proceedings relating points involved, to the and thus expense eliminate the transcript. sug of a He further gests willing agree agreed that he would be to an proposal statement of deprive facts. Neither appel can right selecting lant of her the method of a certified transcript proceedings exceptions as her bill of provided chap. 32, 31, as 1937, page sec. Stats. of appellant’s 63. An to select either method was Gray decided in Court, State rel. ex v. Second Judicial 51 Nev. 278 P. Capurro and in State ex rel. Court,
District respondent pay It is ordered that to the clerk of this court, prosecuting appeal, for the use of following attorney’s fees, sums: for $150 obtaining transcript sum of of the evidence $150 proceedings, exceptions. used be bill of Rehearing On Petition September 24, 1940.
Per Curiam:
Rehearing denied.