| Ark. | Nov 18, 1918
(after stating the facts). We are confronted, in limine, with the motion to dismiss the appeal. This motion must be granted for the reason that the execution docket'shows that the appellant accepted the fruits of a settlement made according to the terms of the decree from which she prosecutes this appeal. Appellant “can not have her cake and eat it, too.” The case on the motion to dismiss is controlled by Coston v. Lee Wilson & Co., 109 Ark. 548" date_filed="1913-10-27" court="Ark." case_name="Coston v. Lee Wilson & Co.">109 Ark. 548-550, where, quoting from Bolen v. Cumby, 53 Ark. 513, we held: “A party may prosecute his appeal from a judgment partly in his favor and partly against him, even after accepting the benefit awarded him by the judgment, provided the record discloses that what he recovers is his in any event — that is, whether the judgment be reversed or affirmed. But 'he waives his right to an appeal by accepting a benefit which is inconsistent with the claim of right he seeks to establish by the appeal.”
The appellees contended in the court below, and contend here on cross-appeal that the appellant is estopped from claiming both the amount of the judgment for damages against, the appellees for destroying the house by fire, and also the amount of insurance collected by the appellees on the policy; that if she holds to the one, she must relinquish the other. If the appellees, cross-appellants, are correct in this contention, which we need not decide, then the appellant could not recover of appellees both the amount of her judgment for damages and the amount of the insurance which the appellees recovered from the insurance company. The appellant therefore by the appeal incurred the hazard of recovering less than was awarded her by the decree from which she appealed. In Coston v. Lee Wilson & Co., supra, we approved the following from Bechtel v. Evans, 10 Idaho 147, 77 Pac. 212: “If the party has collected his judgment, and in seeking to gain more by the prosecution of an appeal, thereby incurs the hazard of eventually recovering less, then his appeal should be dismissed. If, on the other hand, the appeal is from such an order or judgment as that he could in no event recover a less favorable judgment, and that he incurs no hazard of ever receiving less than the judgment already collected by him, we see no objection to the prosecution of his appeal. ’ ’
The court in determining what amount of the purchase money was due appellees on the contract with appellant, gave the latter credit not only for the amount of judgment for damages, but also for the amount less the attorneys’ fees, which the appellees had recovered from the insurance company. Learned counsel for appellant says in his brief: ‘ ‘ The court gave appellee a decree for $74 for taxes paid and for $55 for insurance premium paid and refused to give appellant credit for attorneys’ fees of $200 collected from the insurance company, and dismissed her cross-complaint for want of equity, and from that part of the court’s decree, the appellant has appealed.” But the recitals of the decree on this point are as follows: “From their judgment, the defendant, Tessie Jones, prays an appeal to the Supreme Court,” etc. It thus appears that the appeal was from the entire judgment in favor of the appellees. Moreover, appellant in her cross-complaint set up a failure of consideration in that the deed contained an erroneous description which rendered the deed void for uncertainty, and that appellees had caused the house to be burned which caused a failure of consideration, and she alleged she had paid the appellees $800 on the contract for which she prayed personal judgment against the appellees. -Therefore, even if it could be said the appeal was only from the decree dismissing appellant’s cross-complaint, that appeal called for a review of the whole record on the issue raised by the cross-complaint and the answer thereto.
Chancery causes on appeal to this court are tried de novo, and the broad terms in which the appeal was prayed and granted as shown by the recital in the decree, called for a review of the whole record. Therefore, it can not be said that the appellant was entitled to all that she recovered by the decree in any event, whether the decree was reversed or affirmed. It follows that under the doctrine of Coston v. Lee Wilson & Co., supra, the motion to dismiss the appeal is well taken and the same is hereby granted. A decree will be entered dismissing the appeal.