On Behearing.
(133 Pac. 86.)
Opinion by Mr. Chief Justice McBride.
3. Upon filing their petition for rehearing therein, plaintiff, to supply omission in the transcript, obtained leave to have filed in this court the findings made by the court below, which findings recite the fact that testimony was actually taken on the trial. Assuming this recitation to be correct, the court had jurisdiction to grant the divorce. It may be conceded for the purposes of this case that a decree in a divorce proceeding granting alimony to a party in fault is absolutely void; but that question is not involved here. It appears from the transcript that several pieces of real estate were held in the name of the defendant, and that the court after, as we must assume, hearing all the evidence and weighing the equities between the *557parties, came to the conclusion that a fair and equitable settlement of property rights would be to transfer the legal title of the property from the defendant to plaintiff, and to require plaintiff to pay defendant $50 per month as her rightful income from such property. Such a decree might be irregular, but it is not void; and, if plaintiff was not satisfied with it, he should have appealed, and not resorted to the pretext of waiting until the time for appeal had expired, and then seeking to hold the benefits of the decree so far as it is in his favor and repudiating that part which is to his disadvantage.
4. Following the line of argument found in the briefs of both parties, we assumed in our former opinion that the sum of $50 a month decreed to defendant was alimony pure and simple; but in view of the fact that she held the legal title to a large quantity of real estate of which she was divested by the decree, and in view of the further fact that the court declared the sum of $50 a month a lien on the said property, the testimony not being before us, we will make every intendment in favor of the decree, and therefore assume that the evidence which seems to have been adduced in the Circuit Court showed such equities in favor of defendant in the realty held by her as justified the court in decreeing to her the sum of $50 a month out of the property to which she held the legal title.
The order of the Circuit Court is therefore affirmed, and our former opinion in so far as it directed the retrial of the case is modified. The defendant will recover costs and disbursements in the Circuit Court and in this court.
Affirmed: Former Opinion Modified.