Wiemer v. Wiemer

Fisk, J.

Plaintiff had judgment in the court below for a divorce from defendant. Thereafter defendant made a motion in that court for an order vacating such judgment, alleging fraud as ground for relief. Such motion was denied on October 5, 1909, and from the order denying the same she appeals.

A motion has been made in this court to dismiss such appeal upon the ground that, after the entry of such judgment and prior to defendant’s motion to vacate the same, she accepted benefits thereunder, and the rule recently announced by this court in Tuttle v. Tuttle, and other cases cited therein, is invoked by respondent’s counsel in support of their motions to dismiss the appeal. We are agreed that such rule is inapplicable and that the motion must be denied. It is not contended that any benefits have been received by appellant under the order appealed from, and we know of no reason why she should be deprived of the right to have such order reviewed on the merits. Manifestly, it would he improper on a motion to dismiss the appeal, to review upon the merits the question- of the correctness of the order appealed from. Whether correct or erroneous, appellant is entitled to have the order appealed from reviewed by this court upon the merits. Such order granted her no benefits, therefore it is obvious that she has received none thereunder.

Motion denied.

All concur except Morgan, Oh. J., not participating.