Cassell v. Fagin

• Decision Date: 31 October 1847
• Citation: 11 Mo. 207
• Parties: CASSELL ET AL. v. FAGIN & WEBSTER.
• Court: Missouri Supreme Court

11 Mo. 207

CASSELL ET AL.

v.FAGIN & WEBSTER.

Supreme Court of Missouri.

October Term, 1847.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

KNOX & WHITE, for Plaintiffs. It is a settled rule of law, that upon an erroneous judgment if there be a regular execution, the party may justify under it until the judgment is reversed, for an erroneous judgment is the act of the court. Bank United States v. Pank of Washington, 6 Peters, 8. It has frequently been decided that a party may reverse his own judgment for error. Ingalls v. Lord, 1 Cowen, 240. An entry by a plaintiff in error, on land to which the judgment relates, will not deprive him of his right to proceed. Pinney v. Gleason, 9 Cowen, 635. Pending a writ of error, the plaintiff in the original action may enter if he can; for though this writ forecloses the court and ties up their hands, yet it doth not alter the rights of the parties. Badger v. Loyd, 3 Salk. 145. If the writ of error be brought by the plaintiff below, then the sum which the declaration shows to be due may be still recovered, should the judgment for a smaller sum be reversed, and consequently the whole sum claimed is still in dispute. Gordon, &c., v. Ogden, 3 Peters, 33. Where the money was paid on a judgment of a Court of Common Pleas, which was afterwards reversed on error--held, that it might be recovered back in an action of indebitatus assumpsit for money had and received. Clark v. Pinney, 6 Cowen, 297.

CROCKETT & BRIGGS, for Defendants.

SCOTT, J.

The plaintiffs in error instituted a suit in the Court of Common Pleas against the defendants in error, and in October of the year 1846 recovered a judgment against them. The action was in assumpsit. On the judgment an execution was issued, which was returned in December of that year “satisfied.” Afterwards, in March, 1847, the plaintiffs in error, who were plaintiffs in the original action, sued out this writ of error to reverse their judgment. The question is, whether they can now reverse the judgment, having received satisfaction of it?

By the common law, a writ of error where it lay, was a writ of right, and after its allowance it was a supersedeas of any execution not executed, and no farther proceedings could be had under the judgment. Various statutes were subsequently made, which prevented a writ of error from operating as a supersedeas unless bail in error was given. Thus, a plaintiff in error might have his writ, and, failing to give bail, he might be compelled to satisfy the judgment...