In re the Assignment of Raber

Headnote

Appeal—Waiver by accepting portion op order—Exception.

A party cannot take the benefit of an order or judgment and then appeal from such portions as are unfavorable to him, except where the receipt of the benefit under the judgment is not inconsistent with the appeal.

Motion to dismiss an appeal, on the ground that the appellant has waived his right to appeal by accepting benefits under the decree appealed from.

John Raber made an assignment to John Loughran for the benefit of creditors. In June, 1885, the said assignee filed an account of his proceedings, showing a balance remaining in his hands, after payments made by him, scarcely sufficient to pay his commissions and the expenses of accounting. The assignor, John Raber, filed objections and contested said account, and upon his objection certain payments made by said assignee were disallowed as improperly made, and the amount with which he was chargeable was thereby increased to a sum considerably in excess of the balance remaining in his hands, as shown by the said account. Upon the settlement of the decree confirming the referee’s report, the said John Raber insisted that out of such increased balance he should be allowed $200 for his costs, and that the residue should be applied to the payment of his indebtedness to Alois Raber the first preferred creditor not paid in full. This was done at his request. Afterward the amount of costs awarded him was paid to his attorney, and the residue of the sum remaining in the assignee’s hands was applied in payment of his debts. Subsequently he appealed from the whole of such decree, and the respondent now moves to dismiss such appeal.