Succession of Nicholich , 1936 La. App. LEXIS 214 ( 1936 )

PER CURIAM.

This matter comes before us on motion to dismiss the appeal because of alleged acquiescence in the judgment. The acquiescence is said to be evidenced by the fact that appellant has accepted from the administrator a check for $1,057.45, which is the amount which the judgment ordered the administrator to pay to appellant.

It appears from the record that more than the amount set forth was claimed by the appellant, and that there were other issues involved.

Appellant, after the expiration of the time within which a suspensive appeal might have been taken by the administrator, indicated to the said administrator that he intended to -take a devolutive appeal from the judgment and to complain in said appeal that the judgment should have been for a larger sum, and he requested that since the administrator could no longer appeal suspensively from the judgment, that he should pay to appellant the amount set forth therein, leaving for determination on the devolutive appeal the question of whether any additional amount should be due. It appears that the check was paid and accepted with the understanding that the said acceptance should not interfere with the right of appellant to prosecute a devolutive appeal and to therein claim an additional amount, consequently, the motion to dismiss the appeal is overruled.

Motion denied.