#### Shannon *v.*Mower.

*Assumpsit.*

(Decided May 14, 1914.

65 South. 338.)

1. *Appeal and Error; Satisfaction of Judgment; Effect.*— Where a party has in effect coerced satisfaction of an ordinary judgment at law, his appeal from such judgment will, as a general rule, lié dismissed on motion of the other party.

2. *Same.*— Where the attorney of the party obtaining the judgment orally notified the attorney of the judgment defendant that no appeal would be taken by plaintiff, coupled with the request that such attorney have defendant pay the judgment to the clerk of the court, and defendant paid to the clerk the amount of the judgment and costs, the subsequent appeal by plaintiff to review the assessment of damages awarded will be dismissed on motion of defendant.

Appeal from. Birmingham City Court.

Heard before Hon. C. C. Nesmith.

Assumpsit by J. S. Shannon against Calvin R. Mower. Judgment for plaintiff granting insufficient relief, which judgment and costs were paid by defendant under circumstances set forth in the opinion, and plaintiff appeals.

Appeal dismissed.

A. Leo Oberdorfer, for appellant.

Counsel discusses the merits of the appeal with citations of authority, but in view of the opinion, it is not deemed necessary to here set it out. Counsel insists that the motion to dis-. miss the appeal should not be granted, as there was no coercion, and anything less than a coercion of payment or the actual acceptance of the money paid, will not deprive the party of his right of *appeal.*— Phillips *v. Towles,*78 Ala. 476; *Bhmgler v. Martin,*54 Ala. 354.

John C. Forney, and Jere C. King, for appellee.

The appeal should be dismissed because of a coercion of satisfaction of the *judgment.*— Bradford *v. Bush,*10 *473Ala. 274; *Knox v. Steel,*18 Ala. 815; *Hall v. Hrabrowshi,*9 Ala. 278; *Slvingler v. Martin,*54 Ala. 355. Counsel discuss the merits of tbe appeal, but it is not deemed necessary to bere set out tbe discussion.

SAYRE, J. —

Plaintiff in tbe court below recovered judgment, but, being dissatisfied with tbe damages awarded, bas taken tbis appeal. Appellee moves to dismiss tbe appeal, on tbe ground of facts to be stated; and our judgment is that tbe motion should be granted.

It appears without dispute that, shortly after appellant’s motion for a new trial bad been overruled by tbe trial court, bis attorney of record met one of tbe attorneys for appellee on a street car — as good a place as any —and there informed him that no appeal would be taken, and requested that appellee’s attorney have bis client to pay tbe amount of tbe judgment to tbe clerk of tbe court. Within a short time after be bad been notified of appellant’s request, appellee paid to tbe clerk funds sufficient to pay tbe judgment and costs, where they yet remain. On a later day tbis appeal 'was taken.

It is an old rule of tbis court that, if tbe plaintiff coerces satisfaction of an ordinary judgment at law, bis appeal will, on motion of appellee, be *dismissed.*—Hall *v. Hrabrowski,*9 Ala. 278; *Bradford v. Bush,*10 Ala. 274; *Knox v. Steele,*18 Ala. 815; 54 Am. Dec. 181; *Shingler v. Martin,*54 Ala. 354; *Smith v. Patton,*128 Ala. 611, 30 South. 582. There are exceptions to tbis rule, but tbis case does not fall within *them.*—Whetstone *v. McQueen,*137 Ala. 301, 34 South. 229; *Phillips v. Towles,*73 Ala. 406. Tbe point of controversy is Avhether tbe facts of tbis case bring it at all Avithin tbe principle of those cases in which tbe general doctrine is asserted.

*474Appellant denies the application of the principle, because the payment of the money was not coerced, nor has it reached his hands. The principle of a quasi estoppel by election is the common ground of the cases— the principle which prevents a party from drawing a judgment into question to the prejudice of his adversary after he has coerced its execution or accepted its benefits. That principle has just application in this case. The money which was appellee’s is now as completely beyond his use or control as if its payment had been coerced by execution, and it was placed in this category on the request of appellant, and after appellant had informed appellee that no appeal would be taken. It seems clear enough that the court ought not to require appellee tó submit at one and the same time to the disadvantages of this situation and the harrassmeht of a further prosecution of the appeal. There are cases of this general character, appealing to the court’s sense of equity, in which' an appellant will be allowed to prosecute his appeal upon a restoration of the status quo ante, the court allowing a reasonable time for that purpose ; but here there has been no offer, nor does there appear to he any other reason for that course.

The parties have agreed upon a final disposition of the appeal by joining in a submisison on the motion and the merits.

Appeal dismissed.

Anderson, C. J., and McClellan and de Graffenried, JJ., concur.