Opinion
No. 18,079.
Filed March 17, 1951.
DIVORCE — Appeal — Right of Review — Remarriage Pending Appeal — Right Waived. — One who remarries a third party after a judgment of divorce has recognized the validity of the judgment and is estopped to further prosecute an appeal therefrom, and such an appeal would be dismissed on motion by the opposite party.
From the Dearborn Circuit Court, Lester G. Baker, Judge.
Action for divorce between Gwendolyn and Cornelius Knigga. From a judgment granting the husband a divorce, the wife appeals, wherein the husband filed a motion to dismiss the appeal.
Appeal dismissed. By the court in banc.
James T. Hooper, Sr., of Lawrenceburg, for appellant.
Richard K. Ewan, of Lawrenceburg, and Hartell F. Denmure, of Aurora, for appellee.
Appellant prosecutes this appeal from a judgment granting a divorce to appellee.
Appellee has filed a verified motion to dismiss the appeal. The motion sets forth that appellant has married again since the granting of the divorce and is living with her present husband. Accompanying the motion and made a part thereof appears a certified copy of the marriage license and certificate of marriage. Appellant has in no way controverted the allegations of the motion.
Appellant by her marriage to another has recognized the validity of the judgment appealed from and accepted the benefits thereof. She must also accept its burdens. Should we reverse the decree of divorce, as appellant would have us do, then appellant's husband is not such, but is living in adultery with her. Such remarriage estops her from further prosecuting this appeal. Arnold v. Arnold (1933), 95 Ind. App. 553, 183 N.E. 910; State ex rel. Balsley v. St. Joseph Superior Court (1948), 226 Ind. 372, 81 N.E.2d 373; Stephens v. Stephens (1875), 51 Ind. 542.
Motion to dismiss appeal sustained.
Appeal dismissed.
NOTE. — Reported in 97 N.E.2d 360.