Don v. Don

Russell, C. J.

(After stating the foregoing facts.) As appears from the record, the original order of August 17, 1923, even if it can be properly construed as an order of consolidation, in spite of the fact that it is an order “to abate” the petition for alimony, let it be conceded that it is an order of consolidation, the simple question presented by the bill of exceptions is whether the trial judge erred in declining to revoke the order which appears in the statement of facts.. This, order, whether construed as one of consolidation or as an agreement on. the part of the plaintiff in error to abate her proceeding for alimony, was granted by the court, not upon his own motion, nor upon the motion of Joseph Don, the defendant in error, but upon the consent of the plaintiff in error as evidenced by the signature of her counsel, who still is her sole attorney. Regardless of any question that might be involved as to a failure to file timely exceptions pendente lite, or as to whether, in view of the fact that the two suits were separate proceedings, the order of August 17, 1923, was or was not a final disposition of the case, the issue before us is determined by the principle that no one can complain of a judgment which he himself invokes or to which he expressly agrees. There was consequently no error in the -judgment of the learned trial judge in declining to revoke, at the instance of a party who had knowingly and willingly agreed thereto, a judgment of the court which, so far as appears from the record, was not incompatible with any of the rights of the plaintiff in error, except that by the agreement and treating the plaintiff’s petition for alimony as a cross-action to the petition of the defendant in error for a divorce, the counsel for the plaintiff in error lost the right to open and conclude evidence and argument. While it may be said that an action for divorce depends upon tort, and a sui.t for alimony arises out of a breach of some of the obligations of a marriage contract, the general rule that there can not be a merger of actions for torts with those based upon contract finds an exception in actions for divorce, in which alimony may be asked in the original petition. The right to divorce does not intrinsically depend upon tort, but itself at last relies upon a breach of the marriage contract by some act which by statute in this State is made a ground of divorce. If, as insisted by the plaintiff in error, the former plaintiff for alimony has really been “constrained to abate her suit as plaintiff by petition, and became a defendant by a cross-bill,” a different question would be presented from that now before us. In the case at bar the plaintiff in error agreed to abate her suit, and certainly after two years- have elapsed she can not now be heard to complain either in the lower court or in this. If she “did lose her right to open and conclude the evidence and argument,” it was under her own agreement bespoken through the same attorney who still represents her. Even if the pleadings were in no wise correlated, and even if the order of consolidation forced the wife to abate her suit for alimony and become defendant by cross-bill, these were voluntary waivers of rights upon her part, which she was empowered to make and which can not be whimsically withdrawn. None of the provisions of sections 2945, 2951, 2952, 2975, 2976, or 5520 affect the general principle which allows a litigant to expressly waive rights accorded him upon which he may either insist or relinquish at his option.

Judgment affirmed.

All the Justices concur.