Kansas City, Ft. S. & M. R. Co. v. Murray

• Decision Date: 06 February 1897
• Citation: 47 P. 835,57 Kan. 697
• Parties: KANSAS CITY, FT. S. & M. R. CO. v. MURRAY.
• Court: Kansas Supreme Court

47 P. 835

57 Kan. 697

KANSAS CITY, FT. S. & M. R. CO. v. MURRAY.

Supreme Court of Kansas

February 6, 1897

Syllabus

A party against whom a money judgment has been recovered, and who procures an order of court for the partial satisfaction of the same by setting off against it a like judgment in his own favor for a smaller amount, will be held to have thereby recognized the validity and justice of such judgment against himself, and to have waived his right to prosecute error therefrom.

Error from district court, Johnson county; John T. Burris, Judge.

Action by James C. Murray against the Kansas City, Ft. Scott &amp Memphis Railroad Company. Judgment for plaintiff. Defendant brings error. Dismissed.

Wallace Pratt and Charles W. Blair, for plaintiff in error.

L. O. Pickering, for defendant in error.

OPINION

DOSTER, C. J.

This is the second time this case has been brought to this court by the plaintiff in error. In both instances 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. Railroad Co. v. Murray, 55 Kan 336, 40 P. 646. 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 the same was therefore paid to them by the plaintiff in error. Upon a second trial of the case a verdict was again returned against plaintiff in error (defendant below), and after the overruling of its motion for a new trial, and the rendition against it of the judgment which is now in question, it moved the court below for an offset against such judgment of the judgment for costs which it had formerly recovered in this court against the plaintiff, now defendant in error. To this the defendant in error consented. The credit or offset was thereupon allowed, and the judgment satisfied pro tanto. The defendant in error now moves for a dismissal of the case from this court upon the ground that such demand for credit on the judgment, the allowance of the same, and the consequent partial satisfaction of such judgment, was such a recognition of its validity and justice as to constitute a waiver of the right to prosecute error therefrom. The plaintiff in error contends against this motion, because, as it says, the rule of estoppel applies only in cases where the complaining party has accepted some benefit under the judgment against him, and constituting a part of the same; that, inasmuch as the judgment it asked to offset, and for which it received credit on the judgment below, was in no wise connected therewith, but evidenced a right counter to such judgment, and not a right under the same, it should not be held to have waived its right to prosecute error from the unpaid residue; and it also contends that, in the event of a reversal of the case in this court, the judgment complained of would be vacated, and, per consequence, the order to offset and partial satisfaction, which would fully restore to the parties their former rights; and, furthermore, that the defendant in error, having consented to the offset and partial satisfaction, should not now be heard to urge that which he agreed to as a reason for denying the claim of error. None of these reasons in resistance to the motion to dismiss appear sound. If the motion for offset and partial satisfaction, and the order allowing the same, would of themselves constitute a waiver of the errors complained of, their effect could not be neutralized by the plaintiff’s consent thereto. So far as the compensation pro tanto of one judgment by the other is concerned, the law required the same, and the plaintiff was compelled to submit thereto, whether he consented or not. His consent to the order of offset and satisfaction is no estoppel upon his right to urge a dismissal of the case, because the law imposed the obligation upon him without his consent. Turner v. Crawford, 14 Kan. 499; Read v. Jeffries, 16 Kan. 534; Herman v. Miller, 17 Kan. 328. 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...