
    No. 551.
    J. Buntin et al. v. E. M. Johnson.
    The motion to dismiss the appeal taken by plaintiffs can not prevail. To have filed in the parish court a petition similar to the one now under consideration after an appeal was granted from a judgment of the district court declaring that it had no jurisdiction, is not such an acquiescence in the judgment as will prevent an appeal.
    The acquiescence which prohibits an appeal or destroys it when taken, is the acquiescence in a decree commanding something to be done or given. If the thing commanded to be done or given, is done or given, the j udgment is acquiesced in. Here nothing was ordered to be done. The judgment of the district court was simply that it had no jurisdiction. It did not order plaintiffs to institute proceedings in the parish court.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse. Ray, J.
    
      Todd & Brigham, for plaintiffs and appellees. Newton & Hall, for defendant and appellant.
   Morgan, J.

Petitioners aver that they are the legal heirs of Rebecca Johnson, deceased; that she left property to a considerable amount; that immediately after her death the defendant took possession of her estate, he claiming to be her universal legatee under a pretended will, of which he caused himself to be appointed executor. This will, they aver, is null and void. They pray to be decreed the owners of the property left by the decedent, and that the pretended will be set aside and annulled. The suit was instituted in the district court. The defendants excepted to the jurisdiction of that court. The exception was maintained. A motion is made to dismiss the appeal. The ground relied upon is, that after the appeal was granted they filed a petition, similar to the one now under consideration, in the parish court. This, they contend, is an acquiescence in the judgment. They claim that from a judgment acquiesced in no appeal will lie.

This is true. But the acquiescence which prohibits an appeal, or which destroys an appeal when taken, is the acquiescence in a decree which commands something to be done or given. If the thing commanded to be done or given, is done or given, the judgment is acquiesced in. It is a confession that the judgment is correct, and one can not admit that a judgment is correct and then appeal from it. Here nothing was ordered to be done. The judgment of the district court was simply that it had.no jurisdiction. It did not order them to institute proceedings in the parish court. The motion to dismiss is overruled.

On the Merits.

The case is identical with and is controlled by the case of Eachal, Tutor v. Eachal and Husband, 1 E. 116, and the cases therein referred to.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed; that the exception to the jurisdiction of the district court be dismissed, and that the case be remanded to be proceeded in according to law, defendants to pay the costs of appeal.  