DECISIONS OF THE Court of Appeals of Kentucky FALL TERM, 1917. Whittle, et al. v. Rawleigh Medical Company. (Decided October 5, 1917.) Appeal from Russell Circuit Court. 1. Appeal and Error-Dismissal, Withdrawal or Abandonment.— Where it is made to appear that the right of the appellant to prosecute his appeal has ceased, section 757, Civil Code, authorizes its dismissal, upon motion of the appellee, supported by written grounds showing the loss or cessation of such right to prosecute the appeal. 3. 2. Appeal and Error-Dismissal.-If, pending the appeal, conditions should arise that would make such judgment as would be rendered on the appeal, of no effect, the appeal will be dismissed. Appeal and Error-Compromise-Dismissal.-Compromise by the appellant, after the granting of the appeal or during its pendency, of the judgment appealed from, will authorize the dismissal of the appeal upon the appellee's motion made as allowed by section 757, Code. 4. Appeal and Error-Dismissal.-If the facts authorizing the dismissal of the appeal as allowed by section 757, Civil Code, be not shown by the record, the appellee may, as provided by section 758, Civil Code, plead them by a verified answer, to which the appellant may file a verified reply; but if the appellant fail, by such reply, to controvert the averments of the answer, they are to be taken as confessed; and in such state of case the dismissal of the appeal will follow. LILBURN PHELPS and J. N. MEADOWS for appellants. J. H. STONE for appellee. Vol. 177-1 OPINION OF THE COURT BY CHIEF JUSTICE SETTLE— Dismissing appeal. The appellee, W. T. Rawleigh Medical Company, has entered a motion to dismiss the appeal prosecuted by the appellants, N. A. Whittle and others, from the judgment of the Russell circuit court, by which judgment appellee recovered of them $284.64, besides interest and cost, which was all of its claim sued upon in the action, except $17.96. By the same judgment demurrers filed by appellee to the several paragraphs of appellants' set-off and counterclaim, were sustained, except as to the item of $17.96 contained in one of such paragraphs and claimed by appellants as a credit against appellee; the question whether appellants were entitled to the credit by the item of $17.96 referred to, being continued by the judgment for future adjudication by the court. The appeal prayed and granted is from the judgment as a whole, and the case has been submitted upon the motion to dismiss the appeal, as well as upon its merits. The dismissal of the appeal is asked by appellee upon the ground that appellants have lost their right to further prosecute it or obtain a decision thereof by this court. This contention rests upon the state of facts, set forth in a verified answer filed by appellee in this court; in which it is, in substance, alleged that since the taking of the appeal and during its pendency, to-wit, on August 2, 1916, by a compromise and settlement between appellee and appellants of that date, appellants paid, and the appellee accepted, in full satisfaction of its demands, the $284.64 recovered by it in the court below, and its costs, which added to the $284.64 made a sum total of $337.03; and that in consideration of its acceptance of this amount and its agreement to yield its right to the $17.96 claimed in appellants' counter-claim as a credit against appellee's demand, the appellants surrendered their claim to the item of $17.96 as a credit and agreed to abandon their counter-claim and right to continue or prosecute the appeal to this court from the judgment of the circuit court. The writing which it is claimed evidences this settlement is in the nature of a receipt executed to appellants by appellee through its counsel, which does little more than set out the amount paid in this settlement, how much thereof was paid on the demand sued for by plaintiff, and what part thereof was for the costs of the action; but the writing, as a whole, indicates that there |