94 Ill. 584 | Ill. | 1880
The substance of the agreement made by Hatch was, that if the time for the payment of the money for which the decree found him liable, should be extended, he would pay the amount. He did not agree to waive any error that might have intervened in the proceeding which resulted in that decree;—nor should the agreement to make payment be regarded as so far voluntary as to operate as a release of errors, if any existed. The case of Richeson v. Ryan, 14 Ill. 74, is quite analogous to this. In that case Ryan recovered a judgment against Rieheson. The latter paid the judgment before an execution issued, and then sued out a writ of error to reverse it. The defendant in error pleaded a release of errors, alleging that Rieheson had voluntarily paid the judgment against him. In sustaining a demurrer to the plea, the court said: “If the judgment had been collected by execution, there would not be a doubt of the right of Rieheson to prosecute the writ of error. A payment made under such circumstances would be compulsory, and would not preclude him from afterwards reversing the judgment, if erroneous, and then maintaining an action to recover back the amount paid. The payment in question must equally be considered as made under legal compulsion. The judgment fixed the liability of Rieheson, and he could only avoid payment by procuring its reversal. He was not bound to wait until payment should be demanded by the sheriff. He was at liberty to pay off the judgment at once and thereby prevent the accumulation of interest and costs. By so doing he did not waive his right to remove the record into this court for the purpose of having the validity of the proceedings tested and determined.”
That case was even stronger than the one at bar. Here was a mere promise to pay, which, so far as appears, has uot been complied with. There, payment was actually made.
The appellant is hot estopped by reason of anything contained in his agreement to pay the amount of the decree, from alleging error in respect thereto. The motion to dismiss the appeal is denied.
Motion denied.
