
    Wm. Berry’s Admr. v. Jas. H. Berry’s Curator, &c.
    Judgments.
    Proceeding in lower court, after mandate returned.
    May 1, 1871.
    Lacy, Holt, for appellant.
    
   Opinion op the Court by

Judge Peters :

The court below properly entered a judgment in accordance with the mandate of this court before permitting. any supplemental pleadings to be filed, and as the cause is still under the control of the circuit court, if appellant should desire to pay the money, and should tender it in court, or pay it over in conformity to the judgment rendered, and desire to be relieved from any farther, or future, litigation growing out of the conflicting’ claims to it, and present a supplemental pleading to obtain that end, the court below can order the curator to execute bond and appoint him its receiver to hold the money as such, pending the litigation between the claimants to it, whereby it will be subject to any future order, or judgment of the court, and having done so the court can enter judgment dismissing the action as to appellant, and as it is consolidated with the action of Charles Berry and his assignees against appellant, both actions can be ordered to be prosecuted against the curator of J. IT. Berry, and dismiss both against appellant, reciting the fact in the judgment that he had paid and satisfied the judgment against him in favor of the curator, and thereby discharge appellant from further responsibility.

As to Charles Berry and his assignees, it does not appear that they have either prosecuted an original or cross-appeal from the judgment, although their attorney has a brief in the case asserting that there are some errors in the judgment to their prejudice; this court can not, without such appeal or cross-appeal, adjudicate as to them, and we therefore express no opinion as to the propriety of the action of the court below in imposing any such terms, as expressed in the judgment on said Charles Berry and his assignee in filing this answer and cross-petition.

The judgment as between appellant and James IT. Berry’s curator is affirmed.  