Gran v. Gran

Per Curiam. This is an action for divorce on the ground of adultery. Defendant made countercharges of adultery and cruelty. There was a trial to a jury, which found plaintiff’s charges true and defendant’s not true. The court made findings in favor of plaintiff, granting an absolute divorce with the custody of the children, directing plaintiff to pay defendant’s attorney, within three months, the sum of $150 as attorney’s fees, and that he pay defendant a specified sum per week for her support during a stated period. A motion for a new trial was made and denied and judgment entered in accordance with the decision. Thereafter and within the three months, plaintiff paid to defendant’s attorney the attorney’s fee named, and the latter satisfied this part of the judgment. Defendant appealed from the order denying a new trial and also from the judgment. We deny the motion to dismiss the appeal, which is based on the acceptance by defendant’s attorney of the attorney’s fee awarded by the court, and the satisfaction by him of that part of the judgment. The case is not within the rule that a party may not accept a part of a judgment that is beneficial, and then attack by appeal the judgment through which he received the benefit. There would be no difficulty in sustaining the order and judgment appealed from but for the “supplemental charge” of the trial court. After a trial of some 14 days the jury retired to consider the two questions submitted to them, and they had the assistance of full, clear and correct instructions. After long deliberation they reported differences o’f opinion on the first question, that of the truth of the charge against defendant, and asked certain questions of the court. The supplemental charge was then given. The court was evidently strongly impressed that the verdict ought to be in favor of plaintiff and conceived that justice would be thwarted if the verdict was the other way or if the jury disagreed. The result was a very able and persuasive argument in favor of plaintiff, and a verdict was soon reached. The charge was such that giving it can only be sus [533] taincd by saying that the evidence was conclusive or so overwhelming in plaintiff’s favor that the court would have been justified in granting judgment notwithstanding a verdict for defendant. We have reached the conclusion that we cannot say this. It follows that there must be a new trial. The judgment and order appealed from are reversed and a new trial granted.