57 Kan. 697 | Kan. | 1897
This is the second time this case has been brought to this Court by the plaintiff in error. In each instance the proceeding was based upon a judgment for damages for bodily injuries. Upon the hearing of the first case the judgment was reversed and a new trial ordered. K. C., F. S. & M. Rld. Co. v. Murray, 55 Kan. 336. The order of reversal included a judgment against the defendant in error and in favor of the plaintiff in error for $54.40, — the costs of this Court. The judgment, though nominally in favor of the plaintiff in error, was one in which the officers of the Court were beneficially interested, and the amount of it ivas therefore paid to them by the plaintiff in error. Upon a second trial of the case the verdict was again returned against the plaintiff in error, defendant below ; and after the overruling of its motion for a new trial and the rendition against it of
If the motion for offset and partial satisfaction, axxd
It may be granted that the effect of a reversal of the case by this Court would be to vacate the judgment complained of, and to restore the other one to its condition as a valid, subsisting claim; but the question does not relate to the effect of its reversal as an erroneous or unjust judgment, but to the effect of its recognition by the plaintiff in error as a just and valid judgment. It may also be admitted that asking and obtaining the credit or the offset against the judgment, was not the acceptance of a benefit which formed a constituent part of the judgment. It was, however, an admission of its validity and justice ; an acceptance of it as right and proper ; an abandonment of further contest over the matter in dispute. No one can make payment upon a demand against him, entire and indivisible in character as was this judgment, without being taken to admit it as a just and indisputable claim. Upon no other ground can the doctrine of waiver by voluntary payment be restéd. The credit or offset was in legal contemplation a payment on the judgment; as much so as if it had been made in money. It was the parting by the plaintiff with a thing of value, and its application towards the
The counsel for plaintiff in error have supplemented their printed and oral arguments made on the hearing of the motion to dismiss, with an additional brief set out in their petition for rehearing, to which we have given careful attention. It is strenuously insisted that the foundation of the principle supporting the motion to dismiss is the doctrine of estoppel. We grant it. But estoppel because of what? Not necessarily because of benefits received under the judgment, which it would be inequitable to retain while repudiating the disadvantages of such judgment; but estoppel because of conduct inconsistent with a claim of invalidity and injustice in such judgment. No one in a legal controversy can be heard to say to his adversary,— “Your judgment against me is erroneous and unjust, and my purpose is to demonstrate such to be the case to the appellate courts, but, nevertheless I will pay off a portion of it;” or will be heard to say, “I demand that you accept from me as a credit on your erroneous and unjust judgment what you owe me in respect of another account.”
Every case cited by counsel in which it was held that the conduct of the appealing party did not con» stitute a waiver of the right of appeal, is a case in which such conduct was entirely consistent with a claim of error in the judgment appealed from. Thus, Embry v. Palmar, 107 U. S. 3, largely relied upon by them, is a case in which a party was enjoined from
“The amount awarded, paid and accepted constitutes no part of what is in controversy. Its acceptance by the plaintiff in error cannot be construed into an admission that the decree he seeks to reverse is not erroneous.”
In the case at bar the sum of $54.40, the portion of the plaintiff’s judgment which the defendant demanded should be satisfied by the offset of its claim to that amount, was in controversy. The defendant denied throughout the trial that it owed that sum, or any sum whatever. The sum was an inseparable portion of the entire judgment; and a recognition of the validity and binding force of that portion of such judgment, cannot in law be regarded otherwise than as a recognition of the validity and binding force of the whole.
Whosoever litigates a claim, and, being defeated, pays the judgment, or surrenders the subject-matter of the controversy, waives his right to prosecute error therefrom. The State v. Conkling, 54 Kan. 108; Fenlon v. Goodwin, 35 id. 123. It is no answer to say that in these cases the entire judgment was paid, or the whole subject of controversy surrendered. There is no difference in principle between paying all or a part, or surrendering all or a part, of a legally entire and indivisible thing.
Counsel likewise claim that the orders of offset and partial satisfaction were necessary precautions to save the plaintiff in error from loss. Why necessary at the time such orders were made? The right of offset
We are quite clear the petition in error should be dismissed, and it is so ordered.