The respondent, plaintiff in the court below, has moved for a dismissal of appeal from a decree of divorce in his favor. Two grounds are assigned in support of the motion, first, that the surety on the undertaking on appeal has not qualified in an adequate sum; and, second, that the appellant against whom the decree of divorce was granted has lost her right to appeal by accepting the benefits of a part of the decree. We will consider the second ground of the motion first.
The record discloses the following: The case was tried sometime prior to December 20, 1955. On that day the court, in a memorandum, announced its decision to grant the plaintiff a decree of divorce and to allow the defendant $300.00 attorney’s fee in addition to $150.00 already allowed. Before the entry of an order in accordance with such decision the plaintiff paid to the defendant said sum of $300.00. On January 16, 1956, the court entered an order allowing the defendant the sum of $300.00 as attorney’s fee, the plaintiff filed a motion that the court required the defendant to return to the plaintiff the sum of $300.00 theretofore paid, and the court entered a decree granting the plaintiff an absolute divorce, and further ordering that the defendant “is hereby awarded judgment of $300.00 against the plaintiff as and for the attorney’s fees as provided in the order heretofore signed.” On January 17 the court entered an order denying the plaintiff’s motion to require the defendant to return the $300.00.
*34The general rule is that a defeated litigant cannot accept a part of the benefits of the judgment and appeal from the remainder. West v. Broadwell, 124 Or 652, 265 P 783. There are exceptions to this rule, however, and one of them is the following, as stated in the annotation in 169 ALE at p 1003:
“* * * Under the prevalent modern practice, if the counsel fee is awarded the wife as a necessary item of support up to the effective date of the divorce, and its amount is discretionary with the trial court, a wife appealing on other grounds is not barred by the acceptance.”
Here the allowance of attorney’s fee was made pursuant to ORS 107.090 (1) (a), which provides that after the commencement of a suit for dissolution of the marriage contract the court may provide by order “That the husband pay to the clerk of the court such amount of money as may be necessary to enable the wife to prosecute or defend the suit * * By subdivision (1) (e) of the same section it is provided “That in case default is made in the payment of any moneys falling due under the terms of an order pending suit, any such delinquent amount shall be entered and docketed as a judgment * * Inasmuch as in this case there was no such default, and, instead, the attorney’s fee allowed by the court was paid in full, the authority to enter such a judgment never arose, and it is difficult in any event to perceive how the defendant could have waived her right to appeal by accepting payment of the attorney’s fee prior to the entry of the decree of divorce from which she has appealed.
No argument has been presented to the court in support of the first ground of the motion, which is stated to be that the surety on the undertaking “has *35qualified only in the sum of $200.00 being insufficient to insure the plaintiff-respondent a return of the moneys paid on the judgment in the event the decree is reversed.” Plaintiff has not cross-appealed, and, from what has already been said, it is clear that there is no merit in the claim that the undertaking is insufficient.
The motion will, therefore, be denied.