Matlow v. Cox

• Decision Date: 01 January 1860
• Citation: 25 Tex. 578
• Parties: JAMES M. MATLOW v. ROBERT E. COX.
• Court: Texas Supreme Court

25 Tex. 578

JAMES M. MATLOW

v.ROBERT E. COX.

Supreme Court of Texas.

1860.

A party who has recovered a judgment in the district court, after electing to cause it to be enforced against the opposite party, and to have it satisfied by process of law, cannot prosecute a writ of error to have the proceedings in the cause reviewed by the supreme court.He cannot treat the judgment as both right and wrong, and avail himself of the advantages of such a position.22 Tex. 237.

ERROR from Anderson.Tried below before Hon. C. A. Frazer.

The facts, so far as they need be stated, appear from the opinion.

John E. Cravens, for the plaintiff in error.

Howell, for the defendant in error.

Moore & Walker, also for the defendant in error.A writ of error will not lie to a judgment upon which an execution has issued and a levy made on property for which a forthcoming or delivery bond has been given and forfeited; because this is a satisfaction of the judgment.Phillips et al. v. Wills, Pease &Co. 14 Ark.(Barb.) 595;Dougherty v. McDonald, Id. 597; Stewart v. Fauqua, Walker, 175;Corwell v. Lewis, Id. 251;Davis v. Dixen, 1 How.(Miss.) 64;Keith v. Patton, 1 A. K. Marsh. 17;Harrison v. Wilson, Id. 871;Lusk v. Ramsey, 3 Munf. 417.

The judgment after the forfeiture of the forthcoming bond is no longer in existence.“A writ of error will not lie to it,” and it can not be amended.Burns, Ex'r, v. Stanton, 2 Smedes and M. 457.

An execution issued on the original judgment, after a forthcoming bond has been taken, is a nullity.King v. Terry, 6 How.(Miss.) 513.

A writ of error will not lie to reverse a judgment, after a forthcoming bond has been taken and forfeited, and this, though the judgment had been rendered by default against a party not served.Sanders v. McDowell's Adm'x, 4 How.(Miss.) 9.

“The return on an execution that the debt is paid, and under our statute that it is replevied, in every case where, as in this case, the right of replevy is not questioned, satisfies and discharges it.By the return, both parties are concluded, and it is that which regularly and usually extinguishes the force of the judgment.”Schober v. Dedman, 2 Litt. 116.

It is a well settled doctrine of the common law, that by a levy to the amount of the execution the defendant is discharged, and the creditor has no remedy but against the sheriff; the execution is held to have performed its function, and to be completely at an end, and the judgment to be satisfied.Bank of the United States v. Pantonet. al. 5 How.(Miss.) 237.

That a defendant, it is true, may have a writ of error after execution against him, because the payment of the judgment by him is not voluntary, and he cannot therefore be held to have lost his right to the writ; but we can find no case where the plaintiff can take the writ to cancel his own judgment after he has had a voluntary satisfaction of it.And while we can find the law fully settled as to the effect of a reversal at the instance of the defendant below after execution (2 Tidd, Prac. 1186), we can find nothing in the elementary books or reports which provides such a contingency when a plaintiff has prosecuted a writ of error upon a judgment in his favor, after having sued out execution and satisfaction.

Held, that a party might reverse a judgment in his favor which was unsatisfied.Hale v. Crowell, 2 Fla. 534;11 U. S. Dig.p. 190, sec. 10.

“The suing out of a fieri facias, and the collection of the costs upon a judgment in ejectment, is inconsistent with the prosecution of a writ of error by the same party, which, under such circumstances, will be dismissed on motion of the defendant in error.”Smith v. Jack, 2 Watts and Serg. 101.

“A party who has recovered a judgment in the court of common pleas, and received the amount of it from the defendant, will not be permitted to reverse the judgment on a writ of error.”Laughlin v. Peebles, 1 Penn.(Penrose and Watts) 114.

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 ...