
    HENRY WIEMER v. ALLIE DIVELBESS WIEMER.
    (126 N. W. 1009.)
    Appeal and Error — Acceptance oí Benefits — Divorce — Motion to Dismiss.
    1. A motion was made in the lower court to vacate a judgment granting plaintiff a divorce. Prom an order denying such motion, defendant appealed to this court. A motion is made to dismiss the appeal on the ground that appellant accepted benefits under such judgment prior to the date such motion to vacate was made. No claim is made that appellant has accepted benefits under the order appealed from. Held, that the motion to dismiss is without merit, and must be denied.
    Motion to Dismiss — Adjudication on Merits.
    2. The rule contended for by respondent, and which was recently announced by this court in Tuttle v. Tuttle, 124 N. W. 429, and other cases therein cited, has no application to the motion in the case at bar. A favorable ruling on respondent’s motion to dismiss the appeal would deprive appellant of the right to an adjudication on the merits as to the correctness of the order refusing to vacate the judgment. This would be manifestly improper.
    Opinion filed June 22, 1910.
    Appeal from District Court, Burleigh county; W. H. Winchester, J.
    From an order denying defendant’s motion to vacate a judgment of divorce in plaintiff’s favor, defendant appeals. Kespondent moves to dismiss such appeal.
    Motion denied.
    
      Stevens & Berndt, for the motion.
    
      Engerud, Holt, cmd Frame, contra.
    
   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.

Ellsworth, J.

I concur in the result, without expression of opinion as to whether the rule announced in Tuttle v. Tuttle is applicable to this case.  