Jacobs v. Yale & Bowling

The opinion of the Court was delivered by Todd, J. There are two appeals in this case, one from an order dissolving an injuntion on bond, and another from a judgment on the merits. Except on the ground of want of jurisdiction rations materice, embraced in one of the motions which we must notice on our own motion, we cannot consider these motions, since they were waived by the appellee’s answer to the appeal, wherein they asked that the judgment be affirmed, and for $300 damages for a frivolous appeal. We could not grant these damages, or even affirm the judgment unless we take cognizance of the appeal. We could not affirm the [360] judgment appealed from, and could not award the damages claimed except by a decree of this Court, and we could render no decree or judgment unless we recognized and maintained the appeal, and ignored the motion to dismiss. The prayer of the petition is for the rescission of a sale, the recovery of $1675 paid on the price, and of $2040, the value of the improvements made by the vendee on the land sold, which shows plainly that this Court has jurisdiction of the cause. The motion to dismiss appeal is therefore denied.