Runyan v. Runyan , 68 Ind. App. 79 ( 1918 )

Caldwell, C. J.

By the judgment of the Huntington Circuit Court appellant was granted a divorce from appellee Eunyan, and alimony in the sum of $13,000, with six per cent, interest, payable in installments of $75 per month. After a number of monthly payments of $75 had been made, controversy arose between the parties, appellant claiming that under the judgment there should be paid each month $75, together with interest on that sum from the date of the judgment; while appellee Eunyan claimed that only $75 was required to be paid monthly, and that such payments should continue until the entire judgment, principal and interest, had been discharged, subject to certain exceptions contingent on the life of appellant, but not applicable here, and respecting which there is no contention. Eventually appellant ordered an execution on the judgment for the purpose of collecting the accumulated interest due and unpaid, as viewed from her standpoint. This action was brought by appellee Eunyan against appellant and appellee sheriff to enjoin further proceedings under the execution. A trial being had, the court decided the controversy in favor of appellee Eunyan, and decreed that no further steps be taken under the execution while appellee Runyan continued monthly payments of $75 each. .From this judgment appellant has appealed.

Appellee Runyan moves to dismiss the appeal, basing his motion on the following facts: During the pendency of this action, and after judgment was ren- ■ dered in his favor as above indicated, appellee Runyan continued his monthly payments of $75 each, all of which were received and accepted by appellant. Planting himself, therefore, on the general principle that he who accepts the benefits of a judgment may not appeal therefrom, appellee Runyan moves to dismiss the appeal.

Appellant’s right to receive $75 per month, while recognized by the judgment in this action, is not grounded thereon. That right rests on the judgment in the divorce proceeding. There was no controversy between the parties respecting the duty to pay, or the right to receive that amount. Both by the pleadings and the evidence in this action that duty was recognized, and that right conceded. That element of the case was not in controversy below, and will not be affected by the appeal here. Under such circumstances, it cannot be said that appellant has accepted' benefits under the judgment appealed from. See 3 C. J. 680; 2 Cyc 653; 2 R. C. L. 63, and cases.

The motion to dismiss is overruled.

Note. — Reported in 119 N. E. 873.