Opinion
Opinion Filed September 18, 1936.
An appeal from the Circuit Court for St. Lucie County, Elwyn Thomas, Judge.
T.B. Ellis, Jr., for Appellant;
Sumner Sumner, for Appellee.
Appellee filed suit for divorce. Appellant filed motion to dismiss, answer and counterclaim. Appellee then filed motion to dismiss.
The Chancellor, after hearing, entered order dismissing the cause on complainant's motion at complainant's cost.
The counterclaim prayed divorce upon the allegations made therein. The allegations of the counterclaim were evidently intended to show that the complainant was possessed of a violent and ungovernable temper, or that complainant had been guilty of cruel and inhuman treatment of the defendant, or perhaps both, but the allegations fall short of being sufficient to charge either ground of divorce.
Therefore, the counterclaim was properly dismissed. It appears from the record, however, that the defendant on July 29, 1935, filed in one document answer, motion to dismiss bill of complaint and also counterclaim and on July 31, 1935, complainant filed praecipe or motion to dismiss the cause. The appeal is by the defendant in the court below and while the order recites that the cause is dismissed on motion of complainant at complainant's cost, it is equally as affirmatively responsive to defendant's motion to dismiss which was then pending before the Chancellor undisposed of. As both parties moved to dismiss the cause, the appellant is bound by his motion and cannot now be heard to complain or to insist that the Chancellor committed error in entering an order such as he had specifically moved the Chancellor to enter.
So the order appealed from should be and is affirmed.
So ordered.
Affirmed.
ELLIS, P.J., and TERRELL and BUFORD, J.J., concur.
WHITFIELD, C.J., and BROWN and DAVIS, J.J., concur in the opinion and judgment.