#### Collier, respondent, *v.*Field, appellant.

Case affirmed. The case of *Collier*v. *Field; ante,*205, is affirmed on rehearing.

Practice — *appeal*— *subsequent order*— *statute construed.*On an appeal from an order made subsequent to the judgment, the court has power to reverse the judgmeút. A proper construction of section 378 of the Civil Practice Act gives the court such authority.

*Appeal from First District, Jefferson Oounty.*

This was a rehearing of the case reported *ante,*205.

*321JohNstoN & Toole and' NX. 0. Pa&e, for appellant.

Shober *&*Lowry and A. G. P. George, for respondent

KNowles, J.

This case is presented to this court on a motion for a rebearing. "When it was formerly before us, we only considered tbe right of the plaintiff to have a release, that he had executed to a certain judgment, set aside. We do not wish to recede from the opinion then expressed. Upon an examination of the decree entered by the court below, it may be that it does not bear the construction that the court below had found, that the release should be set aside as a mistake, and so adjudged, and that its proper construction is an adjudication that the plaintiff was entitled to recover, notwithstanding the release to Field. Considering it in this light, is the decree proper ? It is claimed by appellants that the notes and mortgage sued upon in this case were merged in a judgment in a former case of *Collier*v. *Field,*and that, as far as the notes and mortgage are concerned, this case is *res adjudícala.*This was an issue, and the court below found adversely to the defendants upon it. I find no proper exception to this finding. The exception is as follows : “ To the findings of the court herein, and each and every part thereof.” This has been held by this and other courts, when a similar practice prevails, to be too general, if there is one good finding by the court. When an exception is made to a finding of fact, it should point out distinctly the objection. Civ. Pr. Act, § 229. Waiving the point that the exception was not properly taken, does the record show that the finding of the court upon this issue was error ? The matters put in issue in this case were litigated in the other case of *Collier*v. Field, *Ervin and Metcalf,*in the district court, and a judgment entered therein; but in the record is a judgment of this court reversing that judgment. It is claimed this was a mistake, and that this court did not intend to reverse it. I should be inclined to think so. In terms, the judgment of this court is not a reversal of an order made subsequent to judgment, as is claimed, but a reversal of the judgment in the case. Appellants urge that under that appeal from an order made subsequent to final judgment, this court could not reverse the judgment. This is not clear, but I think under the provisions of our statute it could.

*322Section 378 of out Civil Practice Act is as follows : “ Upon an appeal from a judgment or order, tbe appellate court may reverse, affirm or modify tbe judgment or order appealed from, in tbe respect mentioned in tbe notice of appeal, and as to any or all of tbe parties; and may set aside, or confirm, or modify any or all of tbe proceedings subsequent to, or dependent upon, sncb judgment or order, and may, if necessary or proper, order a new trial.”

It is as certain that tbis court bas tbe power to grant a new trial upon an appeal from any order, as it bas to grant a new trial on an appeal from a judgment. I can conceive of cases where it would be proper to order a new trial, on an appeal from an order made after final judgment. Tbe reversal of a judgment of a court below is, in effect, tbe ordering of a new trial. Tbe power to grant a new trial by implication grants tbe power to reverse a judgment. How could there be a new trial without a reversal of tbe judgment that bad been entered in a case? Tbis court bad jurisdiction to do what it did do, and its judgment is not a nullity. Tbe matters presented in tbis case were not *res adgudicata.*

The second point I shall notice is tbe release of Collier to Field. Although not properly presented in the pleadings, tbe issue was made on the trial, as to whether Ervin and Metcalf were present when tbe defendant Field was released, and consented thereto and agreed to be responsible for the balance due on said judgment.

Tbe court finds directly upon tbis point, and in tbe decree is tbis finding: *“*Tbe court finding from tbe proof that they (referring to Ervin and Metcalf) specially agreed to tbe said release, and to become and remain responsible for tbe amount remaining due on said notes and mortgage, after tbe payment and release set forth in said complaint and exhibits attached thereto.”

In tbe findings of facts is tbe following :

> “ That, with tbe consent and agreement of all tbe parties hereto, except said Page, tbe defendant Field was released from all ben or liability in tbe premises, upon tbe payment of one-balf of said indebtedness, which by him was done, and it was agreed that tbe same be credited upon said indebtedness, which, by mistake or inattention, was omitted.”

*323There is another finding, to the effect that Page became a purchaser of an interest in the mortgaged property, with full knowledge of the above facts.

It must be considered that Ervin and Metcalf did consent to the release of Field, and agreed to be responsible upon the balance remaining due upon the judgment.

The defendant Page is' not an innocent purchaser. What effect, under these facts, will this release have ? Did the release of Field release Ervin and Metcalf ?

Parsons, in his work on Contracts, vol. 1, p. 27, says: “ Where a technical release, that is, a release under seal, is given to one of two joint debtors, and the other, being sued, pleads the joint indebtedness and the release, it is no answer to say that the release was made at the defendant’s request, and in consideration that he thereupon promised to remain hable for the debt and unaffected by the release; for this would be a parol exception to a sealed instrument. * * * • This being the reason, it should follow that only a release under seal should have the effect of excluding this answer. And the weight of authority is certainly and very greatly in favor of this limitation.”

The release in this case was an instrument not under se.al. The plaintiff might, as a defense, set up the fact to this release, when interposed by Ervin and Metcalf, that it was made by their consent and that'they agreed to remain liable on the judgment, notwithstanding this release. The release of Field was a good consideration for such an agreement. The proof of this agreement between Collier, Metcalf and Ervin is not a variation of the wx-it-ten contract of release between Collier and Field. It is an additional agreement. Evidence of such an agreement is proper. 1 Greenl. on Ev., § 304. It has been held by many American authorities, that an agreement like the one under consideration would not be considered as a release of the obligation which all had entered into, but a covenant not to sue Field. An agreement not to sue does not discharge the obligation. 1 Pars, on Cont. 28. The release in this pase was from a judgment, and not from the notes and mortgage. This judgment was, in fact, reversed. It is sought to make this release apply to the notes and mortgage. There is a doubt whether this can be done. The point was not *324urged by respondents, and tbey bave treated tbis release as tbougb it did apply to tbe notes and mortgage. The complaint contains two causes of action — one to foreclose a mortgage to satisfy certain notes, and tbe other to reform or set aside this release. Tbe defendants, as a defense to tbe cause of action to foreclose tbe mortgage, do not set forth in their answer tbis release. Tbey deny tbe facts set forth by plaintiff, to secure a reformation or cancellation of tbis release. A release, to be available as a defense to an action for debt, should be affirmatively set forth in tbe answer. Yan Santvoord’s PL 506. If it should be contended that the facts found by tbe court, concerning tbe release, pertained to tbe second cause of action, tbe reformation or cancellation of the release, there was no issue presented as to a release of tbe notes and mortgage, and tbe only issue that was presented as tO' them was, as to whether tbey bad been litigated and merged in tbe former judgment.

*Rehearing denied.*