Lehman-Durr Co. v. Folmar

45 So. 289 | Ala. | 1907

HARALSON, J.

In Marks v. Cowles, 61 Ala. 302, this court said : “The general principle that a judgment or decree reversed by a competent jurisdiction, ceases to exist as between the parties — in the strong language of some authorities, becomes mere waste paper — and that every right and interest springing out of, and dependent upon it, acquired by the party in whose favor it was rendered, shares its fate and falls with it, has been frequently asserted, and underlies numerous decisions of this court,” citing numerous decisions of the court. “* * * Restitution of all advantages the party obtaining the judgment may have acquired lnr its enforcement, is a consequence of the reversal. The restoration of the parties to the plight and condition in which they were, and prior to the rendition of the judgment, it is the spirit and policy of the law to promote and compel.' — 3 Bac. Abr. ‘Error,’ (M), 3, 389'; Freeman on Judgments, § 482. ‘On a reversal of the judgment,’ said the Supreme Court of the United States, ‘the law raises an obligation on the party to the record who has received the benefit of the erroneous judgment to make restitution to the other party for what he has lost.’ * * * Bank of the U. S. v. Bank of Washington, 6 Pet. (U. S.) 17, 8 L. Ed. 299. The party executes the judgment, of his own election, at his OAvn peril, and must be presumed to intend assuming the duty and liability of restitution, if the judgment proves erroneous, and is subsequently reversed,” etc.

In Ex parte Walter Bros., 89 Ala. 237, 7 South. 400, 18 Am. St. Rep. 103, it' avus held that “money paid under and in obedience to a decree of the chancery court, before the issue of execution, is not paid voluntarily, but under legal compulsion, and the decree being reversed by this court on appeal, the party paying is entitled to have restitution, Avithout Availing for the final determination of the cause.” It was further held, in that case, that if the chancellor wrongfully refuses to make an order requiring the restitution of money paid under a decree which has been reversed on appeal, this court will award a mandamus to compel him to make the order.— Wright v. Hurt, 92 Ala. 591, 9 South. 386; 18 Enc. P. & P. p. 871.

Recognizing the force of these principles, the LehmanDurr Company voluntarily surrendered the lands to- the parties entitled, and of this no complaint is made here. It thus admitted its obligation and duty under the order therefor, to make restitution of the possession of the lands which it unlawfully held, and it does not appear that the writ was unlawfully or improvidently issued.

This question out of the way, it may be said, so far as .the appeal goes to the reference to ascertain the rents is concerned, that that reference was not a final decree, hut interlocutory only, and the appeal on this phase of the case cannot be considered, but must be dimsissed.— Beall v. Lehman-Durr Co., 128 Ala. 166, 29 South. 12; Savage v. Johnson, 125 Ala. 673, 28 South. 547; Tatum v. Yahn, 130 Ala. 575, 29 South. 201; Kelly v. Horsely, 146 Ala. 508, 41 South. 902.

We find no error in the decree of the court below, and it is affirmed.

Affirmed.

Tyson, C. J., and Simpson and Denson, JJ., concur.