Owens v. Read Phosphate Co.

Little, J. Where aplaintiff brings suit and recovers a money judgment against, a defendant in an amount less than he claims, and then files a bill of exceptions alleging that errors were committed on the trial in which the judgment was rendered, but subsequently has execution issued on his judgment and levied on the property of the defendant, and the same is paid off and discharged by the defendant, such plaintiff can not afterwards prosecute his writ of error in this court. Having coerced the payment of his judgment, he will be held to have elected to take it as rendered. When such facts are made to appear to this court, the writ of error will be dismissed. Elliott on App. Proc. §150, and cases cited in note 3, page 126; 2 Cyc. Law & Proc. 662, and numerous cases cited in note 76, p. 653. Writ of error dismissed. All the Justices concurring, except Lewis, J., absent.