138 So. 99 | La. | 1931
Lead Opinion
After the transcript of appeal was lodged in this court by plaintiff, it proceeded to execute its judgment against Mrs. Angie E. Harrison by having her property seized under a writ of fieri facias.
Whereupon, the defendant Mrs. Harrison filed a motion in this court to dismiss the appeal on the ground that plaintiff had acquiesced in the judgment by voluntarily executing it.
It is unnecessary to here state all the issues raised by plaintiff in its suit against defendants. It suffices to state, for the purposes of the issue raised by this motion to dismiss, that plaintiff did not obtain judgment for the *552 full amount claimed, and that its demand to have the judgment made executory against certain property was rejected. In other words, plaintiff's demands were rejected in part, and it proceeded to execute the judgment, in so far as the same was favorable to it.
Article 567 of the Code of Practice provides that:
"The party against whom judgment has been rendered cannot appeal. 1. If such judgment have been confessed by him, or if he have acquiesced in the same, by executing it voluntarily."
It will be noted that the above-quoted article of the Code provides that the "party against whom judgment has been rendered" cannot appeal if he have "acquiesced in the same, by executing it voluntarily." (Italics ours.)
In a number of the earlier cases, this article was construed to mean that, if a plaintiff failed to obtain judgment for the full amount sued for, but for an amount less than his demand, he could not maintain an appeal from the judgment in so far as it was unfavorable to him, if he executed it in so far as it was in his favor. It seems to have been considered that a judgment rejecting part of a plaintiff's demands is to that extent a judgmentagainst him, and that the article of the Code cited applies.
In the case of Campbell v. Orillion, 3 La. Ann. 115, the court's ruling is concisely stated in the syllabus, which reads as follows:
"Where a plaintiff who had appealed from a judgment rendered in his favor but for a less amount than he claimed, executing a bond with surety for the costs only, subsequently causes a fi. fa. to be issued against the defendant, it will be considered a voluntary execution *553 of the judgment and an abandonment of the appeal. C.P. 567."
In the case of Succession of J.Y. De Egana, 18 La. Ann. 59, the court said:
"It cannot be controverted that, under the laws and jurisprudence of this State, the party who voluntarily executes, either partially or in toto, a judgment rendered for or against him, or who voluntarily acquiesces in or ratifies, either partially or in toto, the execution of that judgment, is not permitted to appeal from it," citing Code of Practice, art. 567, Williams v. Duer,
In the case of Flowers v. Hughes, 46 La. Ann. 436, 15 So. 14, 15, the court, in the course of its opinion, said:
"It is often the experience that the plaintiff asserting a money demand recovers less than he claims. But, of course, no one supposes he could collect the judgment and still maintain his appeal because he claimed a greater amount than that decreed to him."
The leading case which supports the proposition, that a plaintiff who obtains judgment for less than he demands cannot appeal if he executes the judgment in so far as it is in his favor, is that of Campbell v. Orillion, 3 La. Ann. 115, cited supra. That case is clearly in point. In the other cases cited above, there were other issues involved, and it may be that they could be differentiated from the Campbell Case. But it is clear enough that the court intended to adhere to the rule laid down in the Campbell Case, and, if there were no other adjudications on the precise point at issue, we should unhesitatingly hold that the appeal in the case at bar should be dismissed. *554
But there is hopeless and irreconcilable conflict between those cases and several later ones involving the identical question.
In the case of Kittredge et al. v. Grau et al.,
In commenting, the court said that the motion to dismiss was founded upon article 567 of the Code of Practice, and:
"The plaintiffs in this case appealed from the judgment only in so far as it had rejected their demand. The judgment in their favor, for $2,860.50, or the judgment to that extent, is the judgment that they partially executed by having it recorded in the mortgage office. * * * The rule stated in article 567 of the Code of Practice is founded, expressly, upon the theory of acquiescence, or voluntary compliance with the judgment. The recording of the judgment in plaintiffs' favor was not an acquiescence in the judgment that rejected a part of their demand."
The motion to dismiss the appeal was overruled. This ruling was clearly against that in the Campbell Case, supra, and the others cited in connection therewith. *555
In the case of Augustin v. Farnsworth et al.,
The court overruled the motion, saying:
"It does not follow that, because appellant recorded his judgment, he was satisfied with the amount therein awarded to him, and intended to abandon his appeal."
The ground upon which the court based its ruling was not that the recording of the judgment did not amount to an execution of it to the extent that it was in his favor, but that the execution thereof did not, as a matter of law, evince an intention on his part to acquiesce in the judgment, in so far as it rejected part of his demand.
The court further said:
"To execute a judgment voluntarily, as provided in the article of the Code, is to execute with the intention to confirm or ratify. The act from which confirmation or ratification is sought to be deduced must evince such intention clearly and unequivocally. None will be inferred when the act can be otherwise explained," citing Breaux v. Sarvoie, 39 La. Ann. 243, 1 So. 614; Succession of Easum, 49 La. Ann. 1345, 22 So. 364; and Wells v. Files,
In the case of Cory v. Askew,
"In the case of Kittredge v. Grau,
In Planters' Bank Trust Co. v. Savant,
"But we do not think that a person may be said to acquiesce in a judgment who merely abides by so much of a judgment as is in *557 his favor. Hence it has been held that a party is not prejudiced in his appeal by recording a judgment so far as same was in his favor," citing Kittredge v. Grau, and Augustin v. Farnsworth, supra.
The court further said:
"And even execution of so much of the judgment as he does not complain of does not constitute acquiescence in so much thereof as he does appeal from," citing Milliken v. Rowley, 3 Rob. 253.
Inasmuch as the earlier cases cited herein (and others) are in conflict with the later cases, they must be considered as overruled.
The motion to dismiss appeal is overruled.
Concurrence Opinion
I concur in the decree on the ground that article 567 of the Code of Practice means that a party against whom a judgment has been rendered cannot appeal if he has acquiesced in the judgment by voluntarily paying or satisfying it. The exact language of the article is: "The party against whom judgment has been rendered can not appeal * * * if he have acquiesced in the same, by executing it voluntarily." The word "executing," in the sense in which it is used here, cannot possibly mean issuing execution; because the party against whom judgment has been rendered cannot execute it, by issuing execution, against himself; and he certainly cannot execute it against anybody else. Besides, the expression "executing it voluntarily" cannot mean anything else but paying or satisfying it voluntarily. When a party executes a judgment by issuing execution against the party against whom it has been rendered, he, always and necessarily, does it voluntarily. Therefore, to give the expression "by executing it voluntarily" any other meaning than "paying or complying with it voluntarily" would lead to an absurdity. *558
