Round v. Land & Power Co.

142 P. 292, 92 Kan. 894, 1914 Kan. LEXIS 338

Opinion

Per Curiam:

Action to recover land alleged to have been sold and paid for but not conveyed, or the sum of $333.33, the alleged value of the land not conveyed. On the trial the court sustained a demurrer to plaintiff’s evidence and gave judgment against plaintiff awarding costs in favor of defendant. A motion for a new trial was filed by the plaintiff, but before action thereon was taken he withdrew the motion and at the same time satisfied the judgment by the payment of the costs adjudged against him. He appeals, but the performance of the judgment by the payment of the costs in effect ends the litigation as an appeal does not lie from a judgment which has-been performed. It does not appear that an execution had been issued or that the payment made by the plaintiff was involuntary. Within the rule of Waters v. Garvin, 67 Kan. 855, 78 Pac. 902, the plaintiff is not entitled to prosecute an appeal. (The State v. Conkling, 54 Kan. 108, 37 Pac. 992, 45 Am. St. Rep. 270; York v. Barnes, 58 Kan. 478, 49 Pac. 596).

Notwithstanding the objections to consideration of the appeal we have looked into the abstract and are satisfied that the court would have been compelled to affirm the judgment if it had been open to review.

The appeal will be dismissed.