Two motions were submitted in this case at the same time, one by the appellant and plaintiff for suit money with which to prosecute this appeal, and another by the defendant to dismiss the appeal, based on the ground that the appellant has accepted benefits under the judgment appealed from, by an unconditional acceptance of the money adjudged to be paid to her for attorney’s fees in the district court. We will consider the motion to dismiss the appeal first.
This is an action for a divorce, in which the wife is the plaintiff, and as a ground for divorce she alleges extreme cruelty and the habitual intoxication of the defendant. The answer denies all the allegations of cruelty and intoxication, and alleges an affirmative cause of action for a divorce, by counterclaim or cross-appeal, in which the plaintiff’s misconduct is specifically alleged, and a decree of divorce demanded in favor of the defendant. The trial court made findings of fact and conclusions of law in the defendant’s favor, and a decree was entered granting a divorce to him. *523From that decree the plaintiff has appealed, and demands a review of all the evidence in the case, under the provisions of section 7229, Rev. Codes 1905. The appeal is from the whole judgment. The notice of appeal alleges that the appeal is from “that certain judgment and from each and every part thereof,” etc., and the notice further states: “And plaintiff and appellant appeals from the whole and each and every part of said judgment and demands a new trial of said action in the Supreme Court of the state of North Dakota.” In her complaint the plaintiff alleges what property the defendant owns, and in the prayer for relief she demands “that defendant be required to pay a reasonable sum into court to defray the expenses of this action, and for counsel fees.”
In the judgment is the following provision: “And it is further ordered and adjudged that the defendant pay to the plaintiff upon the entry of this judgment, the sum of two hundred and fifty dollars ($250.00) as suit money in this action.” In the affidavit in support of the motion to dismiss the appeal, the attorney for the respondent states: “That judgment was rendered therein the 10th day of September, A. D. 1909, and that thereafter on the 10th day of November, 1909, on demand and by request of the attorneys for the appellant, respondent did pay to the appellant, through her attorneys D. C. Greenleaf and E. R. Sinkler, all sums adjudged against him by the district court of the Eighth judicial district, and that said appellant did furnish to respondent a full satisfaction of that judgment rendered on the date hereinbefore mentioned, all of which was done after the purported appeal was taken from the judgment of the district court of Ward county, North Dakota, as more fully appears by the certified copy of the judgment and satisfaction and copy of the notice of appeal and undertaking hereto attached and made a part thereof.”
From the provisions of the judgment and the allegations of the. complaint and the findings of the court respecting the financial responsibility of the defendant, it is apparent that the sum to be paid to the plaintiff’s attorney for suit money was litigated before the trial court. The judgment of the trial court fixed the sum of $200 as a reasonable attorney’s fee, and $50 for costs and disbursements, and thereby the amount to be paid became a part of the final judgment, and as such was conclusive upon all parties until reversed or modified by an appeal. That provision was an adjudication upon one of the litigated questions in the trial court, and a review *524of that provision of the judgment was included in the specific demand for a new trial, contained in the notice of appeal. This court would have the power to affirm such provision or reverse or modify it, dependent upon the evidence in this case. The appeal is from the entire judgment, and not from any portion thereof. Either plaintiff or defendant might receive a different judgment in the Supreme Court, inasmuch as all parts of the judgment would be before the court for review in the nature of a trial de novo. This court, on such an appeal, would have power to adjudge that the plaintiff was not entitled to any sum as attorney’s fees, and if the eyidence warranted it, might grant to the plaintiff a larger amount than given to her by the district court. It is well settled that provisions in a final decree fixing the attorney’s fees in divorce cases in favor of the wife are a part of the judgment, and are not independent therof, and are reviewable on an appeal from the judgment. In Nelson on Divorce and Separation, p. 834, it is said: “When an appeal is taken the whole case is open for review upon the evidence, and while the courts hesitate to disturb discretionary orders, it seems that the order for attorney’s fees is often changed with great freedom, and the amount reduced to what the appellate court deems a reasonable fee.”
For these reasons we think it beyond question that the appeal from the judgment in its entirety brought before this court for re-view the provision fixing attorney’s fees in the district court for services rendered in that court. This being true, it necessarily follows that the prosecution of the appeal through which a different attorney’s fee might legally be fixed by the appellate court is incon■sistent with an unconditional acceptance of the amount as .fixed by the district court. The validity and correctness of the judgment cannot be assailed and its provisions unreservedly accepted. An appellant is not permitted to take such antagonistic positions. The principle is elementary that a voluntary acceptance of the benefits under a judgment is a waiver of the appeal. There are some ex^ ceptions to this general principle. If a provision of the judgment appears to have been fixed by consent, or is undisputed, or, for any reason, cannot be changed or reversed by the appeal, an acceptance of the benefit given by such provision is not a waiver of the appeal. This question was considered in Tyler v. Shea, 4 N. D. 377, 61 N. W. 468, 50 Am. St. Rep. 660, and the principles there decided seem to us to be sound and well supported. In Tuttle v. Tuttle *525(recently decided by this court) 124 N. W. 429, the Tyler case was adhered to under facts not legally distinguishable from those at bar. See, also, Williams v. Williams, 6 N. D. 269, 69 N. W. 47, and Williams v. Williams, 29 Wis. 517.
In Storke v. Storke, 132 Cal. 349, 64 Pac. 578, a similar case was before the Supreme Court of that state. In the final judgment granting a divorce the court awarded to the defendant $250 for alimony and $200 for attorney’s fees and costs. Before any motion for a new trial was made by the defendant, the sums which were allowed for alimony and attorney’s fees were paid by the plaintiff to the defendant and accepted by her. Thereafter she made a motion for a new trial, and plaintiff moved to dismiss said motion for a new trial, and said motion to dismiss was denied. The plaintiff appealed from the order denying the motion to dismiss the motion for a new trial. In considering that motion the court said: “Another reason exists why .the motion for a new trial should be dismissed. Defendant accepted a part of the judgment that was beneficial to her. It was a final judgment, and by its terms gave her $450. This sum was based upon the findings, and was the result of the litigation. Defendant took the $450, and now seeks to attack the judgment through which she received it. This she cannot do. Having taken the benefit, she must bear the burden. The amount of this judgment was not large, but the principle is the same. It may have been as great a hardship to the plaintiff to have paid the $450 as it would be for a wealthy man to pay $450,000. If the defendant should procure a new trial, she would still have the $450, and plaintiff would not have his divorce. If she has used it, or is otherwise unable to pay it back, the plaintiff cannot be placed in the same condition in which he was before the trial. The principle is. well settled that a party accepting and receiving the portion of a judgment beneficial to him cannot appeal from it”— citing cases.
In this case the provision for counsel fees is incorporated in the final decree refusing plaintiff’s prayer for divorce and granting defendant’s prayer for divorce. The trial court filed a memorandum of the grounds on which he bases his decision. In this memorandum he states that $50 is allowed for costs and $200 as attorney’s fees, and that such sums “shall be considered as alimony pending suit, inasmuch as the court would have allowed said amount during the trial had motion therefor been made by the plaintiff; the court *526therefore makes such allowance in lieu of and as alimony herein.” The memorandum or opinion does not in any way change the fact that the allowance was made in the final decree and became a part thereof. The opinion of the judge is no part of the decree, and cannot be considered to explain or change the unequivocal terms of the decree. Whereas the judge states that the allowance of attorney’s fees is considered as made pending the suit, the fact remains that it was made in the final decree. The opinion is not the judgment, nor any part of it, and it cannot control the judgment. What we have here said is not to be taken as deciding that a memorandum opinion may properly be' made a part of the judgment roll or statement of the case.
It follows that the motion must be granted and the appeal dismissed.
All concur, except Ellsworth, J., dissenting.