31 S.E.2d 481 | Ga. | 1944
The averments of fact in the motion to dismiss the writ of error are admitted in the plaintiff in error's written response to the motion. Thus it appears that, after suing out the writ of error in this case, the plaintiff in error filed a petition for receiver against the defendant in error and others, reciting that she, the plaintiff therein, was the owner of a judgment lien against the defendant in error by virtue of a decree (the reference being to the decree under attack on the instant writ of error), as well as a judgment against him for alimony; and praying, among other things, that a receiver be appointed to take possession of all the properties of the defendant, "for the purpose of satisfying your petitioner's said judgments or decrees." It further appears that on said petition a receiver was appointed for all the assets of the defendant. The motion to dismiss the writ of error is based on the contention that the plaintiff in error's acts, as above recited, are inconsistent with her right to have reviewed the validity of the decree in the instant case or the correctness of the verdict on which the same was rendered. Held:
The motion is controlled by the ruling in Grizzel v. Grizzel,
Writ of error dismissed. All the Justicesconcur.
The movant shows that the decree of February 4, 1944, above quoted, is the same as the one appealed from in this case, and was based upon the verdict to which the motion for a new trial was directed; and that, with full knowledge of the facts, Mrs. Allen recognized the correctness of the judgment against her, has used that part of said judgment and decree, and has taken a position inconsistent with her right of review; that, for this reason, she is estopped from prosecuting this appeal; and that the writ of error should be dismissed.
In her written response, Mrs. Allen does not deny any of the averments stated in the motion to dismiss. She attached to her *269 response a copy of her receivership suit, referred to in the motion, from which it appears that she averred that she also held against E. W. Allen an alimony judgment for a stated amount, based on a different proceeding.