Adams v. Carter

46 So. 59 | Miss. | 1908

Mayes, J.,

delivered the opinion of the court on the motions.

The motion to dismiss the appeal, because the appellant has accepted tbe amount due on tbe judgment appealed from since tbe taking of the appeal, is not the proper way to raise tbe question, and therefore tbe motion to dismiss must be overruled. Tbe only way to raise tbe question in tbis court is by a plea in bar, supported by proper evidence.^* Tbe question not having been so raised, tbe motion must be overruled, without prejudice to tbe right of tbe appellee to present tbe question in tbe proper way within thirty days from date of tbis judgment.

Tbe motion to strike out tbe designated four pages of tbe record, because -not a proper part of it, is sustained. Tbe record closed at tbe date of tbe judgment, and nothing happening subsequent to that time can properly be made a part of it.

* See the case next following in this volume.