Pazer v. Davis

179 P. 309, 104 Kan. 403, 1919 Kan. LEXIS 278

• Court: Supreme Court of Kansas
• Decided: March 8, 1919
• Docket: No. 21,975
• Status: Published

Opinion

The opinion of the court was délivered by

Burch, J.:

The action was commenced before a justice of the peace. From a judgment in his favor the plaintiff appealed. In the district court the defendants’ motion to dismiss the appeal was denied, and judgment was again rendered for the plaintiff. The defendants assign as error the denial of the motion to dismiss the appeal.

The motion was grounded on the fact that before appealing the plaintiff caused a general execution to be issued on the judgment of the justice of the peace. Because of the appeal, the execution, was recalled. Of course, the plaintiff was not authorized to deny, by appealing, the propriety and conclusiveness of a judgment which he accepted and sought to enforce by causing an execution to issue; but the defendantsestopped themselves from raising the question. Property of the defendants had been attached in the proceedings before the justice of the peace. In the district court the defendants asked for and obtained an order of restoration, before moving to dismiss, and of course they could not deny, by a motion to dismiss, the propriety of an appeal which they had used to their own advantage.

The judgment of the district court is affirmed.