38 Neb. 571 | Neb. | 1894
On September 30,1893, appellees filed in this court a motion to dismiss the appeal, on the ground that after the rendition of the decree sought to be reviewed the appellant
The cause was submitted upon the motions. We will ■ first pass upon appellant’s motion to strike.
It is insisted that the motion to dismiss the appeal comes too late, inasmuch as the same was not filed, nor was notice thereof served upon either the appellant, or his attorney, until after the time fixed by rule 9 of this court, for serving briefs in said cause, had expired. Appellant relies upon rule 8, which declares that “neither motions to dismiss, unless for the want of prosecution, nor to strike a bill of exceptions, will be heard, unless notice thereof shall be served upon the opposite party, or his attorney, or the attorney who tried the cause for him in the trial court, at or before the expiration of the time for serving briefs in the case.” While the language just quoted will justify the construction placed thereon by appellant, namely, that no motion to dismiss a cause out of this court, except for want of prosecution, will be entertained, where notice of such motion is not served prior to the expiration of the time specified in rulé 9 for serving briefs, it was never contemplated that the rule should be held applicable to motions to dismiss, like the one in this case, based upon matters dehors the record, but rather to motions to dismiss, framed to take advantage of mere errors, defects, and irregularities, not affecting the jurisdiction of the court, appearing upon the face of the record itself. To hold that the rule applies to every motion to dismiss, except for failure to prosecute the cause, would preclude this court from hearing a motion to dismiss a petition in error or appeal where the transcript of the judgment sought to be reviewed
As to the motion to dismiss, it may be stated as a gen
It would be manifestly unjust to permit a party who has accepted the fruits of a decree, by taking all the money the-decree gives him, to prosecute his appeal. A party who is-dissatisfied with a decree in his favor should have the same reviewed by proper proceedings. He has the option to do-that, or to proceed to enforce the decree’ and receive the-benefits therefrom; but he cannot pursue both, since one course is inconsistent with the other. The acceptance of the money found due by a decree must be deemed an abandonment of an appeal previously taken. This view is fully sustained by the foregoing authorities.
Does this case fall within the rule above stated? The-record shows that on the 5th day of December, 1892, a decree was rendered in this cause in the district court of'
“WARREN SWITZLER. JAMES H. -McINTOSH,.
“Switzler & McIntosh, Attorneys at Law,
“New York Line Insurance Building,
“Omaha, Neb., Dec. 30, 1892.
“Clerk Distriet Court Washington County, Blair, Nebraska. — Dear Sir : Kindly send us check for any moneys-in your hands as clerk of the county available for payment to our client, Charles A. Harvey, in his claim against Washington county, In re Richards & Company in litigation in Harte, receiver, etc., v. Castetter et al., and this letter, together with your canceled check, will be your receipt for the same, and greatly oblige,
“Yours truly, Switzler & McIntosh.”
' In compliance with said letter the clerk of the district court sent to Messrs. Switzler & McIntosh on December 31, 1892, his check on the Blair State Bank, payable to their order, for $850.84, which was received by appellant’s attorneys, and they received the money thereon. Counsel for appellant insist that they did not receive or accept any money under the decree. The money in litigation had been paid to the district clerk prior to the trial in the court below to abide the decision of the court. On the trial a portion of the fund was found due, and decreed appellant..
But it is said that appellant did not receive, and was not sent, the full amount allowed him by the decree. The only evidence offered on this point is that given by the clerk of the district court, who, in his testimony, states that: “ I mailed a check to said attorneys (Switzler & McIntosh) in compliance with their request, for $850.84, the amount due Harvey under said decree.” From the foregoing it would seem that appellant has been paid all he was entitled to by the decree, but whether he has or has not, in our view, is quite immaterial. The doctrine that a party who accepts the benefit of a decree in his favor waives the right to prosecute an appeal, is not limited in its application to those alone who have accepted the full amount awarded, but applies as well where there has been part acceptance. A party, by voluntarily accepting under a decree a portion of the amount found due him, thereby as fully and completely recognizes the validity of the decree as if he had drawn the full amount allowed him. If appellant desired to prosecute his appeal,he should not have accepted any portion of the fund paid into court, which was adjudged to be his. He was not compelled to accept the money, but could have allowed it to remain with the clerk of the district court until his appeal was decided. The acceptance of the money, under the circumstances disclosed by this record, precludes appellant from challenging the correctness or validity of the decree. The appeal therefore must be
Dismissed.