Currie v. Bennette

67 So. 484 | Miss. | 1914

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a decree in the court below awarding appellant the recovery of a sum of money less-than that to which she claims to be entitled. The cause now comes on to be heard on a motion by appellee to dismiss, which motion, by agreement, has been converted into a plea in bar, for the reason that since the rendition of the decree appealed from appellee had paid to appellant the full amount of money thereby awarded her. This payment was made by appellee pursuant to a request of appellant so to do; and, while appellee claims to have been at the time under the impression that no appeal would be tahen, it does not appear that appellant agreed not to do so.. Appellee’s only complaint along this line seems- to be that he was not told by appellant that an appeal would be taken.

Appellant, who is the widow of B. D!. Cnrrie, deceased, filed a bill in the court below seeking to recover from appellant, the administrator of his estate, the sum of one thousand, .four hundred and twenty-three dollars, and fifty cents, alleged to be due her by this estate. Appellee filed an answer and cross-bill denying appellant’s right to recover this money, and praying that she be held to account to him for the sum of nine hundred and fifty dollars found on the body of B. D. Currie after his death, and appropriated by her, and also for certain money alleged to háve been received by her and which belonged to the estate of her deceased husband.. Numerous amendments'were made in the pleadings by both parties, but the issue was substantially as stated.

An objection had been filed by appellant in the administration proceedings to the confirmation of the report of the appraisers; the objection being that no allowance for the year’s support for herself and children had been set apart. These two cases were consolidated and tried as one.

A decree adjudicated each of these controversies separately,,awarding to appellant: First, the one thousand, four hundred and twenty-three dollars and twenty cents claimed by the estate of her deceased husband, together with interest thereon amounting to three hundred and eighteen dollars and seventy-five cents, making a total of one thousand seven hundred and forty-one dollars and seventy-five cents; second, the sum of seven hundred and forty-eight dollars as a year’s support for herself, and children; third, that she retain the nine hundred and fifty dollars found on the body of her deceased husband after his death', she having established her right thereto; and, fourth, directing that she account to appellant for the sum of one thousand, two hundred and twenty-eight dollars and ninety-six cents collected by her and adjudged to be the property of appellee’s intestate — the total amount thus adjudged to be due appellant being two thousand, two hundred and twenty-five dollars and ninety-five cents. Appellee was directed to deduct therefrom the one thousand two hundred and twenty-eight dollars, and ninety-six cents found to be due him by appellant, and to pay her the' balance, amounting to one thousand, two hundred and ninety-six dollars find ninety-nine cents. It thus appears that the decree appealed from settles several separate and distinct controversies, neither of which is in any wise dependent upon the others; and, in event error shall appear in the adjudication of the issue upon which appellant lost, it will not be necessary, by reason thereof, for the entire decree to be reversed, but only that portion thereof dealing with that issue; the remainder of the decree being permitted to remain in full force and effect. Whether the decree is affirmed or reversed, appellant must recover from appellee at least the amount awarded her in the court below; so that in. neither event will injustice be done appellee by not dismissing the appeal. The fact that the payment of this money was requested by appellant is immaterial.

In Meaders v. Gray, 60 Miss. 400, 45 Am. Rep. 414, the appellant recovered less than he claimed; the amount due him being the only issue involved. He accepted payment of the amount so recovered; then prosecuted an appeal to this court; and it was held that he was not barred thereof by reason of having accepted the amount recovered. If that case was correctly decided, and we think it was, it follows a fortiori that appellant is not barred here.

Overruled.