
    Wirt Adams, State Revenue Agent v. William M. Carter et al.
    [46 South., 59.]
    1. Supreme Court Practice. Appeal. Payment of judgment. Plea in lar. Motion to dismiss.
    
    Whether a plaintiff’s appeal from a judgment in his favor for only a part of his demand, is defeated by his accepting payment of the judgment, cannot be raised in the supreme court by motion to dismiss, but is the subject of a special plea in bar of the appeal.
    2. Same. Proceedings after judgment, no part of record. ,
    A written direction by plaintiff for the issuance of an execution on his judgment and the execution issued in pursuance thereof, with the return thereon, do not constitute any part of the record of the judgment and will be striken therefrom on motion.
    From the circuit court of Sunflower county.
    Hon. Sydney M. Smith, Judge.
    MOTION TO DISMISS APPEAL AND MOTION TO STRIKE SEVERAL PAGES EROM THE RECORD.
    Adams, state revenue agent, appellant, was plaintiff in the court below; Carter and others, appellees, were defendants there. From a judgment in plaintiff’s favor for only a part'of his demand he appealed to the supreme court. The appellees moved a dismissal of the appeal because the appellant had enforced and accepted payment of the judgment, and the appellant moved to strike from the record several pages containing matters occurring subsequent to the judgment.
    
      Balcer ■& Moody, and Tim.E. Gooper, for the motion to dismiss appeal. O. G. Johnson, contra.
    
    
      O. G. Johnson, for motion to strike out part of the record; Balcer & Moody and Tim B. Gooper, contra.
    
   Mayes, J.,

delivered the opinion of the court on the motions.

The motion to dismiss the appeal, because the appellant has accepted tbe amount due on tbe judgment appealed from since tbe taking of the appeal, is not the proper way to raise tbe question, and therefore tbe motion to dismiss must be overruled. Tbe only way to raise tbe question in tbis court is by a plea in bar, supported by proper evidence. Tbe question not having been so raised, tbe motion must be overruled, without prejudice to tbe right of tbe appellee to present tbe question in tbe proper way within thirty days from date of tbis judgment.

Tbe motion to strike out tbe designated four pages of tbe record, because -not a proper part of it, is sustained. Tbe record closed at tbe date of tbe judgment, and nothing happening subsequent to that time can properly be made a part of it. 
      
       See the case next following in this volume.
     