Opinion
No. 28340.
December 16, 1929.
1. APPEAL AND ERROR. Where no evidence was introduced in support of motion to dismiss appeal from county to circuit court, ruling denying motion could not be disturbed.
Where no evidence was introduced in support of motion made in circuit court to dismiss appeal from county court for reason that decree appealed from had been satisfied, ruling denying motion could not be disturbed on appeal to supreme court.
2. APPEAL AND ERROR. On appeal from circuit court's judgment in case appealed from county court, supreme court ordinarily reviews only questions presented by record.
On appeal from judgment of circuit court in case brought there from county court, supreme court is confined to record and reviews only questions presented thereby, unless something has occurred since circuit court's judgment, from which appeal to supreme court was taken, which necessitates dismissal of appeal without review of judgment.
3. APPEAL AND ERROR. Whether appeal from county to circuit court lies is question for circuit court, whose decision is subject to review in supreme court.
Whether an appeal from county to circuit court will lie is question for decision by circuit court, which decision is subject to review in supreme court.
4. APPEAL AND ERROR. Question whether appeal lies from county to circuit court is waived, unless raised in circuit court.
Unless question whether appeal lies from county to circuit court is raised in circuit court, question is waived.
APPEAL from circuit court of Coahoma county, Second district. HON.W.A. ALCORN, JR., Judge.
John W. Crisler and K.A. Carney, both of Clarksdale, for appellant.
The rule that a party cannot maintain an appeal or writ of error to reverse a judgment or decree after he has accepted payment of the same in whole or in part has no application, as a rule, where appellant is shown to be so absolutely entitled to the sum collected or accepted that reversal of the judgment or decree will not affect his right to it.
3 Corpus Juris, page 682, par. 556; 2 R.C.L., page 62, in par. 44; 2 R.C.L., page 63, in par. 45; Meaders v. Gray, 60 Miss. 400; Adams v. Carter, 92 Miss. 597, 46 So. 59; Curry v. Bennett, 108 Miss. 85.
The appellee may, by failure properly to object to the right of the appellant to appeal after accepting payment, and by actively participating in the appeal, be estopped from alleging a waiver of the right of appeal.
2 R.C.L., page 63, par. 45; 3 Corpus Juris, page 689, par. 579.
R.H. and J.H. Thompson, of Jackson, for appellee.
The general rule is that a party who enforces, or otherwise accepts the benefit of a judgment, order or decree cannot afterwards maintain an appeal or writ of error to review the same or deny the authority which granted it. A party cannot avail himself of that portion of an indivisible judgment, order, or decree which is favorable to him, and secure its fruits, while prosecuting an appeal to reverse in the appellate court such portions as militate against him.
Parsons v. Rutherford, 84 Miss. 70.
The exceptions to the general rule, mentioned in section 652, page 679 of 3 Corpus Juris, has no application to the case at bar. They apply only to the cases wherein the appellant is shown to be so absolutely entitled to the sum collected or accepted that reversal of the judgment or decree will not affect his right to it.
Caston v. Wilson, 109 Ark. 548.
The appellant sued appellee in equity in a county court on a life insurance policy, and recovered less than the amount for which she sued. This decree was affirmed on appeal to the circuit court. The appellee has filed in this, the supreme court a plea in bar to the appeal setting forth that the appellee has paid to the appellant the amount for which the decree was rendered in the county court. This payment was made before the appeal from the county court to the circuit court was taken. A motion was made in the circuit court to dismiss the appeal, for the reason that the decree appealed from had been satisfied. This motion was overruled, and counsel for the appellee admit that no evidence was introduced in support thereof, and therefore the ruling thereon cannot now be disturbed.
On an appeal from the judgment of a circuit court in a case brought thereto from a county court, this court is confined to the record, and reviews only questions presented thereby, unless something has occurred since the circuit court's judgment, from which the appeal to this court was taken, which necessitates the dismissal of the appeal without a review of the judgment. Whether an appeal from a county to a circuit court will lie is a question for decision by the latter court, which decision is subject to review here, and, unless raised in the circuit court, any question as to the right of appeal thereto is waived.
Plea in bar of appeal dismissed.