A motion to dismiss an appeal in a decree of foreclosure, in
chancery, refused, though the complainant below, appellant here,
had, after his appeal made, issued execution and got the amount for
which the decree he appealed from, was given.
Merriam filed his
bill in equity in the Federal Court
for Minnesota, for the foreclosure of a mortgage executed by Haas
and wife for $6,000, with interest at 15 percent
The defendants answered, admitting the execution of the mortgage
and that $4,000 and interest (parcel of the amount so secured) was
due, and they submitted to a decree for that sum. But as to the
residue ($2,000 and interest), they insisted that they never owed
it because, they alleged, they had only received from Merriam the
sum of $4,000, and not the sum of $6,000 as was agreed and on the
faith of which agreement the mortgage had been executed.
In June, 1861, the court gave a decree for $4,000, with interest
and costs, the whole amounting to $5,271, but refused to give a
decree including the $2,000 disputed. In April, 1862, the
complainant appealed. On the 15th November of the same year -- that
is to say
after the appeal -- there was a sale and report
of the master in execution of the decree, and on the following
November, that, to-wit, of 1863 (the sale not being yet confirmed),
the defendant paid into court the amount for which the decree was
given, with interest, which whole sum the complainant received and
gave his receipt for. The case being now here,
Mr. Carlisle
moved to dismiss the appeal,
"for that after the same was prayed by these appellants and
allowed by the Court, the decree below having been in their favor
for $5,271, interest and costs, but having denied them an
additional sum which they had claimed in their bill, the said
appellants by their voluntary act as appears by the record,
enforced and took advantage of the said decree, and accepted and
received the sum thereby awarded
Page 70 U. S. 688
to them; whereby they waived their appeal, and are estopped to
question the said decree in this Court."
"On consideration,"
&c.
"MOTION OVERRULED."
NOTE
This motion was decided in February, 1864, about a month before
the present reporter was appointed, and is reported now by him from
the records only. The decision, to which MILLER, J., referred
counsel from the bench, was much relied on by the attorney-general
in argument in the next case, on which account specially the
reporter presents the matter, though of necessity in an imperfect
way. It may be added that the case coming on finally to be heard on
its merits, the decree below was reversed and the case remanded
with directions to enter a decree which should give the complainant
the whole $6,000 claimed by him.
