
    No. 4436.
    Rhoda E. White v. Myra Clarke Gaines.
    The answer to an appeal which asks to have the judgment amended, filed after the motion to dismiss, without reservation of the same, waives the application to dismiss.
    APPEAL from the Fifth District Court, parish of Orleans.'
    
      Lecmmont, J. DeQray, Semmes <& Mott, for plaintiff and appellee.
    JFeZZows (& Mills, for defendant and appellant.
   Morgan, J.

From a judgment rendered against her the defendant took a suspensive appeal returnable to this court ou the first Monday of November, 1872.

The sufficiency of the security on the appeal bond was tested, and the district judge decided in favor of the bond.

The transcript of appeal was filed here. To the appeal the plaintiff answered, claiming an amendment of the judgment in her favor.

Subsequently plaintiff moved the district judge to order the defendant to furnish additional security, alleging that the surety on the bond first given had become insolvent. The motion was granted, and the delay in which the additional security was to be given was fixed at ten days. After the ten days had elapsed, defendant, under an application to us for a writ of prohibition, sought to have the judgment of the district court, which decided adversely to the solvency of her surety, corrected. This we declined.

The additional bond ordered by the judge was furnished.

On the sixth November, 1874, motion was filed to dismiss the appeal.

On the eleventh November, plaintiff filed a supplemental and amended answer to the appeal.

In our opinion the answer to an appeal which asks to have the judgment amended, filed after the motion to dismiss, without reservation of the same, waives the application to dismiss. Hoffman v. Atkins, 11 An. 172; 13 An. 433.

On the Merits.

The object of this suit is to enforce a'contract entered into between the parties and one John Mack, whose interest is now in plaintiff, entered into on the thirtieth May, 1864, by which the defendant agreed to pay to plaintiffs fifteen dollars out of every one hundred dollars which might be realized out of the estate of the defendant’s father.

The defense is that the agreement was without consideration, and was obtained through fraud.

No one can read the voluminous testimony to be found in this record without, in our opinion, being satisfied,

First — That the defendant knew precisely what she was doing when she signed the contract sued upon.

Second — That it was intended to be, and was, a compromise of the claims which the plaintiff asserted he had against her.

Third — That neither error, force, threats or fraud was practiced upon or against her in order to obtain her consent thereto.

Fourth — That it was entered into by her upon the advice of the counsel to whom she had submitted the protection of her interests, and who was informed of all the circumstances from herself, and under whose suspervision, if not by whose hand, the instrument was drawn.

Fifth — That months after the compromise was entered into, she acknowledged having executed it, and declared that she did not wish to retract the same.

Under these circumstances, the defense has none of the elements out of which the right to repudiate the contract can be framed.

It is ordered that the judgment of the district court be amended to read as follows:

It is ordered adjudged and decreed, that there he judgment in favor of plaintiff, Mrs. Rhoda E. White, and against the defendant, Myra Clarke Gaines, for the sum of thirty thousand dollars, with interest at the rate of seven per cent, from May 30,1865, until paid, with mortgage on the property described in the agreement and act of mortgage, dated May 30, 1864, and recorded in the mortgage office for the parish of Orleans, in Book 80 of mortgages, folios 140, 141, and 142, and annexed to plaintiffs petition and made part thereof, w.ith the right to take out execution for the sum of twenty thousand, one hundred and five dollars and twenty cents, being fifteen per cent, of the amount of money and property which is proven to have been recovered, collected and realized by the defendant since May 30, 1864, as heir, daughter and devisee of Daniel Clarke, deceased, reserving to the plaintiff the right to take out execution from time to time for fifteen dollars out of each and every one hundred dollars that may hereafter be recovered, collected or realized, by the defendant, or which she may heretofore have recovered, collected or realized, and of which no proof has been made, upon proof of said recovery being given and produced of, from or out of the property and estate formerly of the said Daniel Clarke, deceased, until the amount recovered from the defendant by the plaintiff shall amount to the sum of thirty thousand dollars, with interest at the rate of seven per cent, from May 30, 1865, until paid.

It is further ordered that the property in said mortgage described he sold to satisfy the foregoing judgment, and that defendant pay all costs of suit.

It is further ordered that as amended said judgment be affirmed, costs. to he paid by tbe defendant.

Rehearing refused.  