148 Ind. 536 | Ind. | 1897
This was an action by appellees against appellants for possession of certain real estate and machinery thereon.
The allegation made in the complaint as to the machinery is, that the appellees are “also the owners and entitled to the immediate possession of all the machinery, boilers, belting, pulleys, appliances, office furniture, and iron safe on said premises, which have been used as a part of the machinery and appliances in connection with the manufacture of furniture by said defendants.”
The appellants answered by general denial, and also by a paragraph setting out the litigation and other matters relating to the history and ownership of the
Notwithstanding the issues so made, and the finding that “all the machinery” was sold to appellee, the court made its first conclusion of law as follows:
“At the time of the bringing of this action, the plaintiffs were and now are the owners in fee of all the property mentioned in the complaint, except the machinery which had been removed to "the second floor and for which other machinery had been substituted, which machines so removed belong to the defendant company.”
The exception so made in appellants’ favor is carried out in the decree, in which, after adjudging that the appellees are the owners in fee simple of the lots described, “together with the buildings and improvements thereon, with all the engines, machinery, pulleys, belts, appliances in use in and about said premises, and that they recover of the defendants the possession thereof,” the court continues: “But this shall not include machines removed to the second floor which are the property of the defendant company.”
But appellees raise no question as to the exception in favor of appellants so made by the court in its conclusions of law and in its final decree. They simply ask for the affirmance of the judgment.
Appellees do, however, by their verified special an
Appellants admit and seek to justify their acceptance and sale of the machinery awarded to them, but contend that they are not thereby debarred from prosecuting their appeal from that part of the judgment in favor of appellees.
We are of opinion that this question has been settled against the contention of appellants, both by the statute and by the rulings of this court. In section 644, Burns’ R. S. 1894 (632, R. S. 1881), it is said: “The party obtaining judgment shall not take an appeal after receiving any money paid or collected thereon.” And in Sterne v. Vert, 108 Ind. 232, it was accordingly held that “A party cannot accept the benefit of an adjudication and yet allege it to be erroneous.”
Nor is it material that appellees interposed no objection to the awarding of a part of the machinery to appellants. Appellees were satisfied with the decree, and are still satisfied with it. But if the judgment should be reversed and the case sent back for a new trial appellees would have suffered a distinct loss and appellants secured a clear gain in the removal of a part of the machinery from the controversy.
A like conclusion was reached in the recent case of McGrew v. Grayston, 144 Ind. 165, where numerous authorities are cited, and it is held that an acceptance of the benefits of a judgment will be treated as a release of errors. See also Glassburn v. Deer, 113 Ind. 174; Stauffer v. Salimonie, etc., Gas Co., 147 Ind. 71.
Appeal dismissed.