| Colo. | Dec 15, 1883
The appellees move to dismiss the appeal, and assign two principal grounds'for the motion; one being that the appellants, since taking the appeal, have availed themselves of a large portion of the money deposited as the purchase money of the mines involved in the litigation, and have thus waived their right to have the judgment appealed from reviewed on appeal. The other ground of the motion is that the judgment appealed from does not relate to a franchise or a freehold, and is not a judgment for money, for which reasons no appeal lies.
The latter ground is not sustained, but directly contradicted by the record. The subject-matter of the cross-bill relates to a freehold. It institutes a contest directly involving the title to several mines, alleging that the deed executed and deposited in' escrow by the appellants was surreptitiously obtained by the appellees; that the conditions of the sale were not complied with, and that for these reasons the title did not pass.
The cross-bill prays for affirmative relief, and that the deed be ordered to be delivered up to be canceled, and that the appellants be decreed to be the owners of the real estate, free and clear of all claims of the plaintiffs.
Upon the other ground assigned in support of the motion, that since taking their appeal the appellants have availed themselves of the benefit of the judgment and the contract, by accepting and receiving a large portion of the purchase money so deposited, thereby waiving their right to have appellees’ title decreed null and void as having been surreptitiously obtained, we observe that this point cannot properly be raised by motion.
Matters may occur subsequent to judgment which operate to waive the right of a party to have the judgment reviewed on appeal, or upon writ of error. When such matters appear of record, the objection is properly raised by a motion to dismiss; but when they do not so appear, the objection must be raised by a plea in bar of the proceedings in error. Powell on Appellate Proceedings, 121, § 12a, and authorities cited.
We entertain no doubt of the general proposition, that it is inconsistent with the principles of justice, and the rules of law, to permit a party, who has voluntarily taken advantage of a judgment rendered at nisi prius, to after-wards prosecute proceedings to reverse it.
Neither have we any doubt of the jurisdiction of this court, when such conduct of a litigant before it is properly alleged, and the matter does not appear of record, to institute the necessary inquiry whether the matters alleged to constitute the waiver have in fact occurred. To sustain the appellants’ objection, and hold that we are without power to institute such inquiry, is equivalent to saying that the supreme court of Colorado is
The motion to dismiss will be denied, without prejudice to the right of the appellees to set up the same matter of waiver by a plea in bar to the proceedings on appeal.
Motion denied.