Noah v. German Insurance

78 Mo. App. 370 | Mo. Ct. App. | 1899

BLAND, P. J.

This suit was brought in the Lincoln circuit court on a policy of insurance which insured the plaintiff’s bouse for $500, and bis household goods for $400. the petition contained but one count, asking judgment for $900, the face value of the policy. A trial was bad resulting in a judgment for plaintiff for $400. the defendant company appealed to tbis court from that judgment.

Estoppel. The appeal was beard at the October- term, 1896, of tbis court, and the judgment of $400 for plaintiff was affirmed. (69 Mo. App. 332.) the plaintiff in error appeared in tbis court on that appeal by attorney and made an oral argument in favor of an affirmance of the judgment, and filed a brief arguing in favor of affirmance. After the judgment was affirmed, the defendant paid the same and all the costs in full, which payment was accepted by the plaintiff. After securing an affirmance and after receiving payment in full of the judgment, the plaintiff sued out a writ of error, and seeks to have so much of the judgment reversed as denied him a recovery of the amount for which his house was insured. The answer to the writ sets out the foregoing facts. Defendant in error contends that Jby accepting the $400 the plaintiff ratified the judgment as affirmed by this court, and also that there can be but one final judgment in a cause. There can be but one final judgment in any cause. Section 2213, Revised Statutes 1889; Slater v. Hunt, Vol. 1, No. 9, Appeal Reporter, 351, and cases cited. The suing out of a writ of error is the bringing of a new suit. Barber Asphalt Pav. Co. v. Quinn, and cases cited, Vol. 2, No. 1 Appeal Reporter, p. 41. This is, therefore, an attempt on the part of plaintiff in error to split his demand and institute a second suit on a part of the demand after receiving the fruits of a litigation of it as a whole; this can not be done; nor can a party accept the benefits of an adjudication and allege it to be erroneous. Waddingham v. Waddingham, 27 Mo. App. 596. And when a plaintiff has recovered a judgment and received satisfaction of the same, he can not afterwards sue out a writ of error to reverse the judgment. Cassell v. Fagin, 11 Mo. 207. By accepting payment of the judgment of $400, the plaintiff released all errors of that judgment and is estopped from further litigating any and all of the issues raised by the pleadings in the cause; he is estopped by his conduct to deny the validity of the judgment, or to say that it is erroneous. A judgment is a finality and binding on the parties; an acceptance of payment of a money judgment is a full and complete discharge of the unsuccessful party against whom the judgment was rendered, from all claims which were litigated and reduced to a certainty by the judgment, and both parties are alike estopped from thereafter attacking the judgment, except by a bill in equity for fraud or mistake. Plaintiff voluntarily instituted and prosecuted his action to a final judgment, and voluntarily accepted payment, and his mouth is forever closed to impeach the judgment for error or irregularity, wherefore the writ of error will be abated and the proceedings dismissed.

All concur.