Latimer v. State

Court of Appeals of Texas

Latimer v. State

328 S.W.2d 242, 1959 Tex. App. LEXIS 2123

CourtCourt of Appeals of Texas

DecidedJune 4, 1959

Docket6303

StatusPublished

Cited by13 cases

This text of 328 S.W.2d 242 (Latimer v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Latimer v. State, 328 S.W.2d 242, 1959 Tex. App. LEXIS 2123 (Tex. Ct. App. 1959).

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Opinions

ANDERSON, Chief Justice.

This cause, a condemnation proceeding, is before us on appeal from the county court, at law, of Jefferson County. The appellee has filed motion to dismiss the appeal, setting up that since the appeal was perfected, the appellee tendered to appellants and appellants voluntarily accepted all sums due under the judgment of the lower court. The motion is verified and supported by exhibits, and has not been answered or contested by appellants. We therefore feel justified in accepting as true the allegations made in it. We sustain the motion. The rule is thus stated in Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004;

“A litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterwards prosecute an appeal therefrom. That is the general rule which [243]*243appears to be universally recognized. It was announced by this court in the early case of Matlow v. Cox, 25 Tex. 578. The rule is based on the principle of estoppel. It, however, is subject to the exception that ‘ * * * where the reversal of a judgment cannot possibly affect an appellant’s right to the benefit secured under a judgment, then an appeal may be taken, * * *.’ 2 Am.Jur. Appeal and Error, Sec. 215. Numerous authorities, approaching the exception from a slightly different angle, define it, in effect, in this language : Where an appellant accepts only that which appellee concedes, or is bound to concede, to be due him under the judgment he is not estopped to prosecute an appeal which involves only his right to a further recovery.”

The case at bar is within the rule but not within the exception. Appellants have no legal assurance that upon another trial they would be awarded as much as was awarded by the judgment from which the appeal was taken. Appellee has never conceded and is not bound to concede that it is intrinsically indebted to appellants for as much as was awarded by the judgment. It did not tender any sum of money to appellants until after the judgment was rendered, did not tender any sum of money in court, and did not enter upon and take possession of appellants’ land upon the strength of any of the proceedings preceding judgment.

The appeal is accordingly dismissed at the cost of appellants.

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ANDERSON, Chief Justice.

This cause, a condemnation proceeding, is before us on appeal from the county court, at law, of Jefferson County. The appellee has filed motion to dismiss the appeal, setting up that since the appeal was perfected, the appellee tendered to appellants and appellants voluntarily accepted all sums due under the judgment of the lower court. The motion is verified and supported by exhibits, and has not been answered or contested by appellants. We therefore feel justified in accepting as true the allegations made in it. We sustain the motion. The rule is thus stated in Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004;

“A litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterwards prosecute an appeal therefrom. That is the general rule which [243]*243appears to be universally recognized. It was announced by this court in the early case of Matlow v. Cox, 25 Tex. 578. The rule is based on the principle of estoppel. It, however, is subject to the exception that ‘ * * * where the reversal of a judgment cannot possibly affect an appellant’s right to the benefit secured under a judgment, then an appeal may be taken, * * *.’ 2 Am.Jur. Appeal and Error, Sec. 215. Numerous authorities, approaching the exception from a slightly different angle, define it, in effect, in this language : Where an appellant accepts only that which appellee concedes, or is bound to concede, to be due him under the judgment he is not estopped to prosecute an appeal which involves only his right to a further recovery.”

The case at bar is within the rule but not within the exception. Appellants have no legal assurance that upon another trial they would be awarded as much as was awarded by the judgment from which the appeal was taken. Appellee has never conceded and is not bound to concede that it is intrinsically indebted to appellants for as much as was awarded by the judgment. It did not tender any sum of money to appellants until after the judgment was rendered, did not tender any sum of money in court, and did not enter upon and take possession of appellants’ land upon the strength of any of the proceedings preceding judgment.

The appeal is accordingly dismissed at the cost of appellants.

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328 S.W.2d 242, 1959 Tex. App. LEXIS 2123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/latimer-v-state-texapp-1959.

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