dissenting;
BbaNNON, Judge concurring herein:I can not concur in the opinion of the Court. It is true the money tendered by the petition and motion of the defendant to dismiss is not actually filed therewith. We must assume, however, that the offer to pay is made' in good faith, and that payment 'will be made if the court so order. I am of opinion therefore that in the proper exercise of its jurisdiction this Court may upon this motion, if the appellants will not receive the money claimed by them, either direct that it be paid into-court to the credit of the cause, and for the use of appellants, and upon such payment to dismiss the appeal; dr in the alternative to enter an order here authorizing the appellee to pay the money so tendered into the hands of the general receiver of the circuit eorirt, for the use of appellants, and paid out there on the order of the circuit court, and in the meantime to suspend further proceedings on the appeal and the disposition of the motion to dismiss for such reasonable time -as will enable the appellee to make such payment and comply with the order of the court, and thereupon to dismiss thé appeal.
*14.What is to prevent this Court from adopting this practice? The canse so far as the matters involved in the appeal are concerned, is wholly transferred to this Court, and the circuit court is left without any authority or jurisdiction in. the premises. Any action on its part affecting the rights of the parties to the appeal would be in violation of the appellate process, and we can conceive of cases where the practice prescribed by the opinion of the Court might lead to conflict and confusion. The proceedings in the circuit court can not be final, but only tentative, for the proceedings must necessarily require the final action of this Court thereon either by motion to dismiss, or upon a supplemental appeal.
The judicial decisions I have been able to find bearing on the question relate to cases where the status concurring after the appeal, justifying dismissal, has been brought about by the voluntary acts of the parties, as by settlement out of court, or by payment to some one authorized by law to receive payment. But' certainly ‘when an appellee comes confessing error, and proposes to do by voluntary act just what the appellant is seeking to accomplish by appeal and the appellant declines the offer, some practice should be adopted which will aid him in stopping further expense and litigation, and I think the practice indicated herein, and not that established by. the opinion of the Court, the more logical, and the practice which should prevail.