Hoogendorn

(after stating the facts as above).

A motion is made to dismiss the writ of error, on the ground that the plaintiff in error has paid and satisfied the judgment. The motion must be denied. One who voluntarily pays a judgment is not precluded from taking an appeal therefrom. County of Dakota v. Glidden, 113 U.S. 222 , 5 S.Ct. 428 , 28 L.Ed. 981 ; Erwin v. Lowry, 7 How. 172 , 12 L.Ed. 655 ; O’Hara v. McConnell, 93 U.S. 150 , 23 L.Ed. 840 ; Edwards v. Perkins, 7 Or. 149 .

Error is assigned to the refusal to strike from the complaint those allegations which set up as elements of damage the payment of traveling expenses and loss of time and loss of opportunity to earn money by the defendant in error, incidental to his efforts to obtain title to his mining claims and his prosecution of his suit. Those allegations should have been struck from the complaint. But the defendant in error suffered no prejudice from the denial of his motion. No evidence whatever was offered to the jury to support the allegation as to the first item of damages. Nor did the court submit to the jury that item for their consideration. After the verdict was rendered, the court struck from the amount thereof…