84 Neb. 479 | Neb. | 1909
Action in replevin in justice court to recover the possession of three hogs. The property was taken by the officer and delivered to the plaintiff. There was a verdict
Several questions are presented by the record, but it will only be necessary to consider one of them in order to correctly dispose of the case. The rule is well established in this jurisdiction that a party who voluntarily accepts the benefits or receives the advantage of a judgment or decree of the trial court is thereby precluded from afterwards prosecuting error or appeal. Harte v. Castetter, 38 Neb. 571. It is contended, however, that the rule above stated does not apply to the facts of this case, because the plaintiff only enforced so much of the judgment as was in his favor, and that this does not preclude him from appealing from so much of the judgment as was against him. In the case above cited the same contention was made, but the court said: “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 voluntary 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
It may be said with equal force in the case at bar that the plaintiff cannot accept and enforce so much of the judgment as is favorable to himself and appeal from that part of it which is against him. He may enforce the judgment so far as it benefits him; but, if he recognizes its validity to that extent, he cannot question any part of it. If it was his desire to prosecute error from the judgment of the justice of the peace, he should not have taken out an execution and enforced the judgment as against the defendant. This case is clearly distinguishable from Weston v. Falk, 66 Neb. 198, and Meade P., H. & L. Co., v. Irwin, 77 Neb. 385, and hence they are distinguished herein.
The district court properly held that plaintiff had waived his right to prosecute error, and the judgment below is
Affirmed.