Flowers v. Hughes

46 La. Ann. 436 | La. | 1894

The opinion of the court was delivered by

Miller, J.

The motion to dismiss is on two grounds: That the transcript is imperfect, and that the defendant in the lower court, the appellant here, has acquiesc.d in the judgment from which he appeals.

The suit was for a partition between the plaintiff and defendant and others, heirs of John Hughes. The defendant m his answer urged that in the petition the last community should be charged with certain amounts of the separate estate of his father, received by or which enured to the benefit of that community, and the answer also contained other demands pertinent to the settlement of accounts between the hems. The partition and sale of the property was decreed and the usual order of reference to the notary for the completion of the partition was made. The partition act awarded to the defendant twenty-nine hundred and twenty 74-100 dollars, and on motion of one of the parties the partition was homologated, against the objections of the defendant, whose demands urged in his answer were disallowed. From the judgment homologating the partition the defendant took this suspensive appeal. Pending his appeal, on his motion, he obtained an order to receive five hundred dollars of the amount awarded to him. by the judgment, and accordingly that amount was paid to him. . This payment is the acquiescence in the judgment, the basis of the motion to dismiss.

It is the text of the Oode that the appellant can not maintain his appeal from the judgment acquiesced in by him. Oode of Practice, Art. 567. To receive the amount of the judgment, in whole or in part, is, in its natural significance as well as under our jurisprudence, an acquiescence in the judgment. To receive part is as . significant as to receive the whole. If the defendant could receive part of the amount decreed to him and still preserve his appeal, he might just as well take the full amount. If the judgment was satis - fled by the defendant receiving the full amount, it certainly could not be urged he could still maintain the appeal from a judgment that, satisfied, had ceased to exist. Payment in part of the judgment as an acquiescence in that judgment is not to be distinguished from full payment. Any payment received by defendant under the judgment is fatal- to his appeal from it. See 3 An. 115; 4 An. 150; 7 An. 233; 18 An. 64; 32 An. 947.

The defendant contends he can maintain his appeal, because he claims more than the judgment gives him, and his acquiescence is only to the extent of the amount decreed to him, but does not extend to the greater amount he claims and that the judgment disallows. But it is only through the judgment he can appeal to claim the greater amount, and if he acquiesce in that judgment the basis for his appeal disappears. It is often the experience that the plaintiff asserting a money demand recovers less than he claims. But, of course, no one supposes he could collect his judgment and still maintain his appeal, because he demands a greater amount than that decreed to him. Such a pretension was advanced in one of the cases cited in this opinion, where the appeal was devolutive. It was supposed in that case that the plaintiff, taking only the devolutive appeal, could collect his judgment and still prosecute his appeal for the greater amount he claimed. The court discarded this pretension, and held that acquiescence in the judgment by payment ended the appeal, though plaintiff claimed more than the judgment gave him. See 8 An. 115.

The defendant cites the case from 3 Rob. 253. There the judgment was in favor of the plaintiff for the partition of the land, and against him in favor of defendant for the improvements. The plaintiff took steps to execute the judgment in his favor for the partition, but appealed from the money judgment against him for improvements; that is, he took the appeal from the judgment to contest the money demand. The court held in that case, on the motion to dismiss, that, acquiescence in the decree for the partition was not acquiescence in the decree against plaintiff for money. There was no act of plaintiff in that case of acquiescence in the money decree. The other case cited by defendant (3 An. 593) is that of an injunction against the seizure of property. The injunction was on motion dissolved aS' to part of the property, and that part plaintiff proceeded to seize and sell. By a subsequent judgment the injunction was maintained as to the residue of the property seized, and from that judgment plaintiff appealed. The court on a motion to dismiss held, that executing the judgment dissolving the injunction as to part of the property was not an acquiescence in the judgment maintaining the injunction as to the residue. There were two judgments. The court, observed, the judgment in that case was not indivisible. There was manifestly in that case no acquiescence in the judgment appealed. from, because the appellant had executed another judgment. Here, there is one indivisible judgment in favor of the defendant for a sum of money. He takes part of the sum decreed to him. That must be deemed an acquiescence in it. The circumstance that in taking it,, he undertakes to recover his right to the appeal is of no consequence. The protest itself evinces his appreciation of the significance of the act; the protest is unavailing to avoid the consequence the law attaches to acquiescence in the judgment.

It is a reluctant duty to dismiss appeals, thus precluding the relief sought by the litigant in the court of last resort. In this case the court conceives there is no alternative.

It is therefore ordered, adjudged and decreed that this appeal be dismissed at appellants’ costs.

Rehearing refused.