— Aрpellant seeks to prosecute this apрeal from an agreed judgment of the Lake Circuit Court in an action there involving a partnership between the parties hereto. After the judgment, which shows оn its face that it was made by the court on the agreement of the parties, appellant filed what he denominated a motion for a new trial in which he averred that he had not agreed to the judgment, that it was obtained by fraud, and for the further reasons that thе finding and decision of the court is not sustained by sufficient еvidence and is contrary to law. After hearing evidеnce on this motion it was overruled by the trial court.
Appellee has filed his motion to dismiss this appeаl. The motion contains several specifications. We deem it necessary to consider only twо of these. (1) This is a purported appeal frоm an agreed judgment; (2) that the purported transcript shows upon its face that appellant’s objеctions were denied after a three day hearing by the trial court, and the evidence supporting the court’s decision is not made a part of the rеcord herein.
“It is a general rule that an order, judgment, or decree, entered by the court upon the consent of the parties litigant, being in the nature of a contract to which the court has given its formal approval, cannot subsequently be opеned, changed, or set aside without the assent of the parties, in the absence of fraud, mutual mistake, or actual absence of consent, and then оnly by an appropriate legal procеeding.” 139 A. L. R. 422, and authorities cited under Point II. See also,
McMahan
v.
McMahan
(1895), 142
*69
Ind. 110,
Thе question of the trial court’s ruling on the motion for a nеw trial requires a consideration of the evidenсe. No bill of exceptions containing the evidеnce heard by the trial court on this question has been filed. Therefore, no question has been presented for our consideration.
3. Moreover, in a supplemental motion to dismiss this appeal appellee has filed the certified record оf the clerk of the Lake Circuit Court showing that appellant personally received and receipted for the sum of $392, which was part of the benefits grаnted him in the judgment he here seeks to attack. It is provided by § 2-3201, Burns’ 1933, in part, as follows: “The party obtaining judgment shall nоt take an appeal after receiving аny money paid or collected thereon.” Appellant, having accepted benefits from thе judgment herein, cannot now have that judgment reversed.
Beard et al.
v.
Hosier et al.
(1915),
For the reasons herein set out, the appeal must be dismissed.
Note. — Reported in 56 N. E. (2d) 505.