Smith v. Powell , 5 Kan. App. 652 ( 1897 )

Milton, J.

We have read the transcript and the briefs of counsel for both parties with great care, and have also read all the authorities which have been cited. Under the facts presented by the record itself and by the affidavit in support of the motion to dismiss, we hold that plaintiff in error is not entitled to a decision upon the merits of the controversy. The case should be dismissed.

On the day he excepted to the order of distribution which gave him four hundred dollars and the defendant in error $365.40, plaintiff in error, by his attorney of record, demanded and received the sum awarded. We think this was an action inconsistent with that of appealing from the order. Plaintiff in error has thus estopped himself from prosecuting these proceedings in error. This conclusion is in line with the great weight of authority, and no case has been cited which announces a different rule. Babbitt v. Corby, 13 Kan. 612 ; Hoffmire v. Holcomb, 17 id. 378 ; Rasure v. McGrath, 23 id. 600 ; Perkins v. Bunn, 56 id. 271; Savings Bank v. Butler, 56 id. 267. In the latter case the court quotes approvingly from Albright v. Oyster (60 Fed. Rep. 644), as follows :

“No rule is better settled than that a litigant who accepts the benefits, or any substantial part of the benefits, of a judgment or decree, is thereby estopped from reviewing and escaping ro m its burdens. He cannot avail himself of its advantages and then question its disadvantages in a higher court.”

The petition in error will therefore be dismissed;