Chapman v. Sutton

Cole, C. J.

The contention of the appellant is that tbe evidence clearly shows that when Hasey, one of the defendants in the creditors’ suit pending in Jefferson county, made the tender and payment of the two judgments and costs in that suit, this was understood and intended to include the action of Sutton v. Chapman, pending on appeal in Columbia county. There is certainly testimony to sustain this contention; but indisputably there is a serious conflict on that point. It is not worth while to discuss the evidence in detail. The circuit court found that the payment of the judgments involved in the creditors’ suit was not understood or intended by the parties to be a settlement of the appeal action of Sutton v. Chapman, or of all pending litigation. It cannot well be claimed that this finding is so unsupported by evidence that this court would be justified in setting it aside.

But the appellant insists that the writings made at the time between Hasey and McKenney furnish the best possible evidence of what took place and what the settlement was intended to include. The writings consist of a statement of the amount of the judgment of Sutton v. Chapman, with costs and interest to April 4, 1884; also the judgment of Roberts v. Chapman, costs and interest to the same date, and a receipt by McKenney, as attorney of Sutton, of the payment of the entire amount mentioned in the statement. At this time the costs in the equity suit had not been taxed, and only a part were then paid. Subsequently the costs were taxed and the remainder was paid to McKenney, who gave a receipt for the same. These writings are a statement of the amount of the two judgments and an acknowledgment of payment. They are properly receipts, affording most satisfactory evidence of a settlement of the equity suit, but not conclusive of the fact that such settlement was intended to include the case of Sutton v. Chapman, pending on appeal. The appellant might well have supposed that *661 the settlement of the equity suit would stop all further litigation in pending actions between him and Chapman; but it is difficult to hold that the writings furnish clear and satisfactory evidence of that fact. The writings, being in the nature of receipts, are open to evidence as to whether the payment of the judgments in the equity suit was understood and intended at the time to be a settlement of the action pending on appeal in Columbia county. This manifestly was the view taken of the effect of these writings on the former appeal, when they were all before the court ( 64 Wis. 312 ), for the case was then sent back to have that question tried and determined. This wmuld not have been done if in the view of the court the writings themselves afforded conclusive evidence that the settlement included the appeal suit.

It will be remembered that the equitj suit was between different parties, and its settlement would not necessarily settle and dispose of that action. The law is well settled that payment of a judgment is no waiver of the right to appeal therefrom, or to bring a writ of error to review it. Clark v. Pinney, 6 Cow. 297 ; Sturges v. Allis, 10 Wend. 355 ; Peyser v. Mayor, 70 N. Y. 497 ; Mann v. Ætna Ins. Co. 38 Wis. 114 ; Sloan v. Anderson, 57 Wis. 124 . “Coercion by law is where a court, having jurisdiction of the person and the subject matter, has rendered a judgment which is collectible in due course. There the party cast in judgment may not resist the execution of it. His only remedy is to obtain a reversal, if he may, for error in it. As he cannot resist the execution of it, when execution is attempted h.e may as well pay the amount at one time as at another, and save the expense of delay.” Peyser v. Mayor, supra. Money paid under such circumstances may be recovered back on the reversal of the judgment, on the principle that it belongs ex ceguo et bono to the party paying it. The appellant was endeavoring to collect his original judgment *662 by bis creditors’ bill, and continued to press that suit until ■it was settled. If, instead of taking this course, he had collected the judgment by execution pending the appeal therefrom, there would be no doubt of the right of the plaintiff herein to have the excess refunded to him.

The court finds that Hasey settled the equity suit and paid the amount of the judgment at the instance and request of the plaintiff. The appellant objects to the amount of the recovery in this action. "We do not. see any error in the judgment on that ground. On application the court will doubtless offset or deduct the judgment previously recovered by the appellant from this judgment. This will do justice to the parties.

It results from these views that the judgment of the circuit court must be affirmed.

By the Court.— Judgment affirmed.

ObtoN, J., dissents.