
    Atkinson et al. v. Tabor et al.
    A fund in litigation deposited in a bank which is deemed unsafe; an appeal pending from a judgment disposing of same; a person having a contingent interest in the fund, in common with appellants, withdraws a portion thereof from the bank, with the sole purpose of saving it, in view of the failing condition of bank — the appellee having refused to consent to a change of the place of deposit: Held, that the withdrawal is not such an appropriation of the fund in litigation as amounts to a waiver of the right to prosecute the appeal.
    
      
      Appeal from District Court of Latee County.
    
    Motion to dismiss appeal.
    Mr. L. O. Rockwell, for the motion.
    Messrs. Markham, Patterson and Thomas, and Mr. Clinton Reed, contra.
    
   Per Curiam:

We do not regard Sullivan and his asso- ■ dates as occupying the relation of parties to this litigation. Their interest in the result accrues by virtue of their contract with Atkinson and Chaney, the appellants. If, by virtue of the terms of that contract, Sullivan and his associates drew out and appropriated to their use, or with the intention of so appropriating it, three-fourths of the money deposited by Tabor and Smith in the Bank of Leadville in payment of the purchase money of the Tam O’Shanter group of mines, it was the same in law as if Atkinson and Chaney had drawn the money themselves; and it would be a waiver of their right further to prosecute the appeal. If, however, money and securities to an amount covering the contingent interest of Sullivan and others in the deposit were drawn out of the bank on account of its failing condition alone, and after Tabor and Smith had declined to agree to á change of the deposit to a place of greater safety pending the result of the litigation; and if there was no actual appropriation of such portion of the deposit, and none. was intended, but the action complained of was taken merely to secure from the impending disaster that proportion of said deposit to which Sullivan and his associates might become entitled, under their said contract, by the judgment of this court, it would seem to be extending the doctrine of waiver beyond the precedents cited, to hold that the right of the appellants to further prosecute their appeal is thereby cut’off.

Some of the alleged facts concerning the purpose and necessity of the acts supposed to constitute the waiver are disputed, and, without passing upon the conflicting statements, it is sufficient to say that, upon consideration of the case as presented upon the motion to dismiss the appeal, we do not feel warranted in granting the motion. Being of opinion that the rights of the parties should be adjudicated upon the merits, the case will be reserved for final hearing. The motion to dismiss the appeal is denied.

Motion denied.  