Cassell v. Fagin & Webster

11 Mo. 207 | Mo. | 1847

Scott, J.,

delivered the opinion of the Court.

The plaintiffs in error instituted a suit in the Court of Common Pleas against the defendants in error, and in October of the year 1846, recovered a judgment against them. The action was in assumpsit. On the judgment an execution was issued, which was returned in December of that year “satisfied.” Afterwards in March, 1847, the plaintiffs in error who were plaintiffs in the original action, sued out this writ of error to reverse their judgment. The question is whether they can now reverse the judgment, having received satisfaction of it?

By the common law, a writ of error where it lay, was a writ of right, and after its allowance it was a supersedeas of any execution not executed, and no farther proceedings could be had under the judgment. Various statutes were subsequently made, which prevented a writ of error from operating as a supersedeas unless bail in error was given. Thus, % plaintiff in error might have his writ and failing to give bail, he might be compelled io satisfy the judgment before a trial in the court of error.— The proceeding to enforce the judgment against the plaintiffs in error, being in invitum and he being unable to prevent it, it was reasonable that he should have an opportunity of revising that judgment, and if found erroneous, that he should be restored to all he had lost by it. Therefore if a judgment was satisfied by such means, the plaintiff in errpr was not debarred from redress; but if he succeeded in reversing the judgment, notwithstanding his adversary had enforced satisfaction of it, he would be entitled to restitution.

Very different is the case of a plaintiff in error, who wishes to reverse his own judgment as he may do. He is under no necessity of suing out execution to enforce his judgment and receive satisfaction of it, and if by his own voluntary act he extinguishes his judgment, what is there on which a writ of error can operate? When a party voluntarily extinguishes his own judgment, he cannot afterwards complain of error in it. What is the difference in releasing a bond and afterwards endeavoring to recover on it; a writ of error is said to be a new action; 2 Saun., 101. Suppose a plaintiff reverses his judgment and procures a new trial, will he not hold on to what he has already received, and if on the second trial he should recover nothing, the defendant would not be entitled to restitution, for he stands in the place of one who has paid money by “process of law,” under which he acquiesces. Thus the plaintiff will have it in his power to split his cause of action to recover one part of it at one time, and afterwards sue for the balance.

The other Judges concurring,

the judgment will be that the plaintiff take nothing by his writ of error. Strange, 127.