Hay v. Jenkins

Miller, J., delivered the opinion of this Court. The motion to dismiss this appeal must prevail. The verdict was in favor of the appellants, the plaintiffs below, for $510.67, and judgment for this sum and costs was rendered in their favor on the-28th of June, 1865. At the trial, both parties took exceptions and entered appeals, but subsequently on the 29th of July, the plaintiffs “countermanded” their order for an appeal, and on the same day issued an execution on the judgment which was returned “ stayed by defendants’ appeal; bond Sled and approved by the Court, August 6th, 1865.” Afterwards, on the 10th of January, 1867, they renewed their appeal. Where an appeal is prayed and allowed and then withdrawn, the party is not precluded, if nothing [565] more is done, from afterwards prosecuting an appeal, provided he does so within the time allowed by law for appeals to be taken; but where he withdraws or countermands his appeal and then takes out execution upon the judgment, we are of opinion he thereby waives his exceptions, and cannot after-wards appeal in the same case. (Decided 21st April, 1868.) Appeal dismissed.