Yates v. Yates ( 1916 )

Opinion by

MATHEAYS, C.

This was an action for divorce and alimony. Upon the trial being had, the court refused plaintiff’s prayer for a divorce, but granted a divorce to defendant upon his cross-petition. The court also allowed plaintiff alimony in the sum of $500, and the further sum of $15.0 for her attorney, and provided that the amount theretofore allowed for temporary alimony be deducted from the amount therein .allowed, and that the balance be paid to-the clerk for the use and benefit of the plaintiff. The plaintiff took an appeal from the overruling of her motion for a new trial, and the same was perfected and filed in this court.

Defendant has now filed a motion to dismiss this appeal, and as a basis therefor files an affidavit made by the court clerk •of Pottawatomie county, to the effect that •on December 28, 1915, after the court had rendered his decree in this cause, the defendant paid into the hands of said clerk the sum of $450, for the use of the plaintiff, and that on December 30, 1915, the plaintiff through her attorney was paid out ■of said money the sum of $445.50, being the balance due on said alimony judgment. After having voluntarily accepted the money paid in on the judgment for her use and benefit, it follows that she is- estopped from prosecuting her appeal from the judgment.

The appeal should therefore be dismissed!.

By the Court: It is so ordered.