Allen et al., Adm'rs, vs. Smith, Ex'r. the lands, had a right at his election to file his claim for probate with other creditors or pursue his remedy for satisfaction out of the lands. This was the main question presented for our consideration, and it was held that the death of Jordan did not affect the rights of Smith, acquired under his contract of lien, which, if valid before Jordan's death, remained so afterwards; that the land at the time of Jordan's death was incumbered with Smith's debt, and brought Smith within the rule that he who is first in time, who has incumbered the property with his own debt when added to his equal equity in other respects, makes his the superior equity, and it entitles him to satisfaction out of the particular estate thus incumbered. Haskell et al. v. Sevier et al., 25 Ark., 152. The objections taken by defendant's counsel seem to have arisen out of a misconception of the real grounds of this action, which is not against an estate for satisfaction out of the personal assets, but to obtain a satisfaction out of a particular estate, which had been, by contract, incumbered in the lifetime of the debtor with its payment. Holding, as we do, that the causes for demurrer were not well taken, and consequently that the bill is sufficient to entitle the complainant to a decree, if proven, we will turn our attention to the remaining question: Have the facts been sufficiently proven to entitle the complainant to a decree in his favor? An interlocutory decree by default was taken against the administrators. Two of the heirs appear and answer. The material fact denied is that the debt is due; if not, the heirs. will of course be protected. The recitals in the deed furnish very satisfactory evidence of most of the facts in issue. They show that a note for $15,000 was executed by Lewis Shanks, payable to Petyma Smith, complainant's intestate; the date of the note, the time Cloud, Adm'r, vs. Wiley, et al. when due and the rate of interest, are all set forth, and that the note was executed in part consideration for the payment of the land therein conveyed to Shanks, and that the contracting parties therein declare that the deed was executed, in the language of the deed, "with the understanding of all the parties that a lien is reserved upon the land until the purchase money is fully paid off." In addition to these facts shown by the deed, which is duly authenticated and inade an exhibit in the case, the deposition of the administrator, Smith, which appears to have been regularly taken, is to the following ef fect: That although not present when the deed was executed, he had been afterwards informed by his intestate, that such a note was executed as that described in the deed; that he knew of his own knowledge that the note was in existence shortly before the federal forces took possession of Pine Bluff; after which intestate told witness that she had been robbed of that and other valuable papers; that intestate was his mother, and after her death, he searched amongst her papers, and in trunks and all places where papers were likely to be kept, and could not find the note; believed it to be lost or destroyed. This evidence well sustains the facts set forth in the deed and averred in the bill. In view of which the decree in the court below in favor of complainant will be sustained. Let the decree be affirmed. CLOUD, Adm'r, vs. WILEY et al. 1. APPEAL: Effect of, upon the judgment. Upon the recovery of judgment, the cause of action is destroyed by merger, and the granting of an appeal does not revive it so that another suit may be maintained on it, or impair the judgment, but the latter continues to subsist until reversed and set aside. Cloud, Adm'r, vs. Wiley et al. 2. FORMER RECOVERY: When may be pleaded. In such case the defendant, if sued again during the pendency of the appeal on the original cause of action, may plead a former recovery. 3. APPEAL FROM PROBATE COURT: Appellee cannot dismiss. The appellee, on appeal by an administrator from a judgment of allowance against the estate of his intestate in the probate court, has no right to dismiss the proceeding in the circuit court, or before the clerk thereof in vacation; and it is error for the circuit court to strike the appeal from the docket on account of such attempted dismissal. APPEAL from Clark Circuit Court. Witherspoon and Garland & Nash, contra. WALKER, J. The facts necessary to a proper understanding of the questions of law to be considered, are: That Wiley and Lawrence presented a claim against the estate of Harden M. Prior, to Cloud, the administrator, for his approval and allowance, which he refused to allow, but waived the regular notice and appeared at the October term, 1866, of the probate court for Clark county, in which a trial was had, and the court, after hearing evidence, rendered judgment in favor of the claimants, Wiley and Lawrence, from which an appeal was prayed by Cloud and granted, and a transcript sent to the circuit court to which the appeal was taken. Afterwards, and before the sitting of the circuit court, the plaintiffs (appellees), by attorney, appeared before the clerk of the circuit court, in vacation, and asked that the case be dismissed, which was granted by the clerk and the case dismissed. Soon after this, the plaintiffs again presented their claim to the administrator of the estate of Prior, for VOL. XXIX.-6 Cloud, Adm'r, vs. Wiley et al. allowance and classification, and the claim was disallowed, notice again waived and the parties appeared before the same court at another term, and a second trial was had upon the same lost note, which was presented and upon which the first trial and judgment were had. After the plaintiffs had closed the evidence on their part, the defendant introduced and offered in evidence a record of the proceedings and judgment in the first trial, and without formal pleadings insisted that the judgment was evidence of a former recovery upon the same cause of action. Upon consideration of the case, the probate court decided in favor of the defendant, and rendered judgment in his favor, from which the plaintiffs appealed to the circuit court, and the case was sent to that court for hearing upon appeal. Both appeals were docketed. The plaintiffs moved the court to strike the first appeal from the docket, as improperly docketed, for the reason that the suit had been dismissed before the clerk in vacation; which motion was sustained by the court and the case stricken from the docket, and the defendant excepted. And it appears that at this point all further proceedings touching the first appeal ceased. Errors were assigned by the appellant, which were sustained by the court, and a trial de novo had. When the case came up for trial, the defendant moved the court to declare the law to be: 1. That the dismissal of the former case on the same cause of action had no legal effect. 2. That unless proof is offered of the contents of the note sued on, outside of the payee and assignee's affidavit, judgment must be given for the defendant; which the court refused to do, and upon consideration of the evidence, rendered judgment for thepiaintiffs, from which the defendant appealed. The most material question presented for our consideration grows out of the defense of former recovery. Was the first Cloud, Adm'r, vs. Wiley et al. judgment in force when the second suit was brought? If it was, there can be no question that the second suit upon the same cause of action could not be maintained. This involves a consideration of the effect of the appeal upon the judgment appealed from, the power of the appellee to dismiss an appeal, or to dismiss his case (he being the plaintiff in the cause) after judgment in his favor and an appeal taken by the defendant. There can be no question that the probate court had ample jurisdiction of the cause of action, and that a regular judg ment was entered, from which an appeal was taken to the circuit court. The judgment, in the language of Blackstone, "is the sentence of the law pronounced by the court upon the matter contained in the record." 3 Black. Com., 395. Final judgments are such as at once put an end to the action by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for. Id., 398. And after which there is in fact no cause of action in existence, until the judgment is set aside by the court which rendered it, by an appropriate application for that purpose, or is reversed by some appellate tribunal before which it is taken by appeal or other appropriate process. The appeal taken from a judgment in nowise affects its validity. The right of appeal by a party who feels himself aggrieved by the judgment is clear, and one which, if regularly taken, the appellee has no power to defeat; because, if the appeal be simply dismissed, the judg ment of the court from which the appeal is taken remains in as full force as if no appeal had been granted. Ashley v. Brasil et al., 1 Ark., 144. It would be a mockery to give to the defendant the right to appeal from a judgment rendered against him, and at the same time to the plaintiff the right to dismiss the case, whether in vacation before the clerk or in term time before the court (which in effect was to dismiss the appeal), because |