6 Kan. App. 173 | Kan. Ct. App. | 1897
The first thing requiring our attention, is the motion of the defendant in error to dismiss these proceedings for the reason that the plaintiff in error has voluntarily accepted the benefits of the judgment of the court-below, and is, therefore, estopped from prosecuting error, to reverse the same.
It appears from the record and the evidence offered that, on June 17, 1893, judgment was rendered for the plaintiff in error and against the defendant in error for costs, amounting to $62.15, which was immediately paid into court. On June 24, J. A. Smith, the attorney of record for the plaintiff in error, demanded, received, and receipted for $23.50, deposition fees due the plaintiff. On July 7, 1893, the same attorney demanded, received, and receipted for, five dollars and a half, another deposition fee due the plaintiff, and on January 25, 1894, he also demanded, received, and receipted for the balance of the money in the hands of the clerk belonging to the plaintiff, amounting to fifteen dollars, deposited by him as security for costs.
The plaintiff in error, in opposition to this motion, says, in substance, that soon after the rendition of the judgment he discharged his attorney, J. A. Smith, and that the money was drawn without his knowledge or consent and applied on Smith’s fees for services in the case ; and that his rights should, therefore, not be prejudiced by Smith’s conduct.
J. A. Smith, the attorney of record for the plaintiff in this case, who tried it in the court below, prepared and served the case-made and caused it to be settled by the judge after he had withdrawn two of the amounts mentioned ; he appeared in this court at its last term and orally argued this cause, and, finally, on November 27, 1897, filed a reply brief herein. Ac
That a party who accepts the benefits of a judgment is estopped from prosecuting a proceeding to review the same, has been decided so often by the Supreme Court and by this court that it can be assumed as the settled law on that question. The motion to dismiss this proceeding in error will be sustained, and it is ordered dismissed at the costs of the plaintiff in error.