Nelson v. Bernhardt ( 1885 )

Gunby, J.

Where plaintiff sued for possession of property and for damages for its unlawful detention by defendant, and obtained judgment for the property, but rejecting his demand for damages, and he appeals, his receiving the property, which defendant voluntarily tenders to him pending the appeal, is not such an acquiescence in the judgment as will vacate the appeal. In the case of Stinson vs. O’Neal, 32 An. 947, there was an active exercise and assertion of rights under the judgment, not a mere passive or negative submission to a discharge of the judgment by the other party.