Matlow v. Cox

| Tex. | Jul 1, 1860

Roberts, J.

The plaintiff brought suit upon a note for one thousand two hundred and fifty-seven dollars. Defendant pleaded a set-off of one thousand dollars. A verdict was returned and judgment was rendered for two hundred and fifty-seven dollars and interest in favor of plaintiff. The plaintiff made a motion for a new trial, which being overruled, he gave notice of appeal to the Supreme Court. A bill of exceptions and statement of facts were prepared, signed, and filed in the cause. No appeal bond being given, execution was regularly issued for the amount recovered, and costs of suit. This execution was returned satisfied in full by the sheriff, with the receipt of plaintiff's attorney thereon endorsed as follows : “Received of T. L. Pinson, dep. sheriff, three hundred and eight 85-100 dollars in full for principal, interest and jury fee in this case.”

About two months afterwards, (two years from the date of the judgment not still having elapsed,), plaintiff filed a petition, gave bond, and procured to be issued a citation, in error, assigned errors, and brought the transcript into this court, and here asks a revision of the matters litigated in the court below, as set forth in the bill of exceptions, statement of facts, and otherwise apparent upon the record, and a reversal of the judgment rendered in the. cause, in which- the defendant’s set-off had been allowed.

The defendant moves to dismiss the writ of error, because the “ plaintiff had caused the execution to be issued on the judgment recovered by him in the court below, and the same, together with interest and cost, was collected previous to suing out the writ of error.”

The record shows that the plaintiff caused his judgment to be fully satisfied, and the liability of defendant thereon extinguished before he sued out his writ of error. He has thereby elected his' remedy, and must abide by it. He recognized it as a valid subsisting and final judgment, and enforced it as such by final process; and has realized the benefits of it as a final judgment. ■ He has treated the matter as at an end; and with this, the suing out the writ of error to re-open the litigation is entirely inconsistent. It is an effort to use the court in the attainment of - his object by piecemeal, by first adopting its judgment as right, and then repudiating it as wrong, and to avail himself of the advantages of its being both right and wrong. The court should not be placed in the attitude of subserving such a purpose; nor would.it be fair dealing towards the opposite party to permit it. Therefore the writ of error must be dismissed. (Laughlin v. Peebles, 1 Penn. Rep., (Penrose and Watts) 114; Smith v. Jack, 2 Watts and Serg. Rep., 101.)

Writ of error dismissed.