On Motion for Rehearing. This court in Dunham v. Randall Chambers Co.,11 Tex. Civ. App. 265, 32 S.W. 720, 721, said in a case in which the appellant was circumstanced as is the *Page 785 complainant here: "For him [the appellant] to accept the benefits of a judgment while prosecuting an appeal to have it set aside as erroneous is clearly an instance of such inconsistency, giving him, in case of reversal, an undue advantage over his antagonist, and embarrassing the proceedings in the trial court."
The motion is overruled.