(173 La. 550)

#### FOSTER & GLASSELL CO., Limited, v. HARRISON et al.

No. 31315.

Supreme Court of Louisiana.

Nov. 3, 1931.

Poster, Hall, Barret & Smith, of Shreveport, for appellant.

Peterman, Dear & Peterman, of Alexandria, for appellees.

On Motion to Dismiss Appeal.

ODOM, J.

Plaintiff brought suit against defendants for $5,000, plus interest and attorneys’ fees, less a credit of $725.47, paid on Pebruary 28, 1927. It prayed for judgment in solido against defendants for said amount, and that the judgment be made executoryand enforceable against certain property. Upon final trial, there was judgment in favor of plaintiff and against defendants for the sum of $1,748.05, one-half of which, or $874.02, was decreed to be due by Mrs. Angie E. Harrison, and the balance by the other defendants. Further thanvthis, plaintiff’s demands were rejected, and it appealed. Defendants also appealed, but failed to perfect their appeal by executing the required bond.

After the transcript of appeal was lodged ■ in this court by plaintiff, it proceeded to execute its judgment against Mrs. Angie E. Harrison by having her' property seized under a writ of fieri facias.

Whereupon, the defendant Mrs. Harrison filed a motion in this court to dismiss the appeal on the ground that plaintiff had acquiesced in the judgment by voluntarily executing it.

It is unnecessary to here state all the issues raised by plaintiff irt its suit against defendants. It suffices to state, for the purposes of the issue raised ..by this motion to dismiss, that plaintiff did not obtain judgment for the full amount claimed, and that its demand to have the judgment made executory against certain property was rejected. In other words, plaintiff’s demands were' rejected in part, and it proceeded to execute the judgment, in so far as the same was favorable to it.

Article 567 of the Code of Practice pro-' vides that;

“The party against whom judgment has been rendered cannot appeal. 1. If such judgment have been confessed by him, or if he have acquiesced in the same, by executing it voluntarily.”

It will be noted that the above-quoted article of the Code provides that the “party *agamst*whom judgment has been rendered” cannot appeal if he have “acquiesced in the same, by executing it voluntarily.”' (Italics ours.)

In a number of the earlier cases, this article was construed to mean that, if a plaintiff failed to obtain judgment for the full amount sued for, but for an amount less than his demand, he could not maintain an appeal from the judgment in so far as it was unfavorable to him, if he executed it in so far as it was in his favor. It seems to have been considered that a judgment rejecting part of a plaintiff’s demands is to that extent a judgment. *agamst*him, and that the article of the Code cited applies.

In the case, of Campbell v. Orillion, 3 La. Ann. 115, the court’s ruling is concisely stated in the syllabus, which reads as follows:

“Where a plaintiff who had appealed from a judgment rendered in his favor but for a less amount than he claimed, executing a bond with surety for the costs only, subsequently causes a fi. fa. to be issued against the defendant, it will be considered a voluntary execution of the judgment and an abandonment of the appeal. C. P. 567.”

' In the case of Succession of J. Y. De Egana, 18 La. Ann. 59, the court said:

“It cannot be controverted that, under the laws and jurisprudence of this State, the party who voluntarily executes, either partially or in toto, a judgment rendered for or against him, or who voluntarily acquiesces in or ratifies, either partially or in toto, the Execution of that judgment, is not permitted to appeal from it,” citing Code of Practice, art. 567, Williams v. Duer, 14 La. 523; State v. Judge, 4 Rob. 85; Campbell v. Orillion, 3 La. Ann. 115, supra; Fluhart v. Golding, 7 La. Ann. 233; and Landry v. Connely, 4 Rob. 127.

In the case of Flowers v. Hughes, 46 La. Ann. 436, 15 So. 14, 15, the court, in the course of its opinion, said:

" “It is often the experience that the plaintiff asserting a money demand recovers less than he claims. But, of course, no one sup*100poses lie could collect the judgment and still maintain his appeal because he claimed a greater amount than that decreed to him.”

The leading case which supports the proposition, that a plaintiff who v obtains judgment 'for less than he demands cannot appeal if he executes the judgment in so far as it is in his favor, is that of Campbell v. Orillion, 3 La. Ann. 115, cited supra. Thakcase is clearly in point. In the other cases cited above, there were other issues involved, and it may be that they could be differentiated from the Campbell Case. But it is clear enough that the court intended to adhere to the rule laid down in the Campbell Case, and, if there were no other adjudications on the precise point at issue, we should unhesitatingly hold that the appeal in the case at bar should be dismissed.

But there is hopeless and irreconcilable conflict between those eases and several lat.er ones involving the identical *question.*

In the case of Kittredge et al. v. Grau et al., 158 La. 154, 103 So. 723, 724, decided on motion to dismiss the appeal, June 22, 1922, plaintiffs sued to be decreed the owners of certain shares of stock claimed by defendant, and, in the alternative, prayed for a judgment fob the value of the stock. Judgment was rendered in plaintiffs’ favor for $2,860.-50, which was less than the amount demanded, and they appealed. Thereafter, plaintiffs, through their attorneys, recorded the judgment. It seems to have been conceded that the recording of the judgment was a voluntary execution of it. Defendant then moved to dismiss the appeal upon the theory that “the recording of the judgment, being, to that extent, an execution of the judgment, was an acquiescence in the decree, or an acknowledgment of its correctness, on the plaintiffs’ part.”

In commenting, the court said that the motion to dismiss was founded upon article 567 of the Code of Practice, and:

“The plaintiffs in this case appealed from the judgment only in so far as it had rejected their demand. The judgment in their favor, for $2,860.50, or the judgment to that extent, is the judgment that they partially executed by having it recorded in the mortgage office. 3⁄8 * 3⁄8 The rule stated in article 567 of the Code of Practice is founded, expressly, upon the theory of acquiescence, or voluntary compliance with the judgment. The recording of the judgment in plaintiffs’ favor was not an acquiescence in the judgment that rejected a part of their demand.”

The motion to dismiss the appeal was overruled. This ruling was clearly against that in the Campbell Case, supra, and the others cited in connection therewith.

In the case of Augustin v. Farnsworth et al., 155 La. 1053, 99 So. 868, 869, plaintiff sued defendants to recover one-half the original cost of constructing a' party wall, $2,-468.25. He obtained judgment for $1,539.51, less than the amount demanded, and appealed. In this case, as in that of Kittredge v. Grau, supra, plaintiff, caused a copy, of the judgment to be recorded in the mortgage records. After plaintiff’s appeal was perfected, defendant moved to dismiss it on the ground of acquiescence, invoking the law as set out in Code of Practice, article 567.

The court overruled the motion, saying:

“It does not follow; that, because appellant recorded his judgment, he was satisfied with the amount therein awarded to him, and intended to abandon his appeal.”

The ground upon which the court based its ruling was not that the recording of the judgment did not amount to an execution of it to the extent that it was in his favor, hut that the execution thereof did not, as a matter of law, evince an intention on his part to acquiesce in the judgment, in so far as it rejected part of his demand.

The court further said:

“TO execute a judgment voluntarily, as provided in the article of the Code, is to execute with the intention to confirm or ratify. The act from which confirmation or ratification is sought to be deduced must evince such intention clearly and unequivocally. None will be inferred when the act can be otherwise explained,” citing Breaux v. Sarvoie, 39 La. Ann. 243, 1 So. 614; Succession of Easum, 49 La. Ann. 1345, 22 So. 364; and Wells v. Files, 136 La. 133, 66 So. 749.

In the case of Cory v. Askew, 169 La. 479, 125 So. 455, an injured employee sued his employer for compensation at $20 per week for 400 weeks, under the Workmen’s Compensation Act (Act No. 20 of 1914 as amended). I-Ie was awarded compensation for five weeks, and appealed. Playing executed the judgment and collected the amount awarded him, the appellee moved to dismiss the appeal on the ground of acquiescence, and the court said:

“In the case of Kittredge v. Grau, 158 La. 154, 103 So. 723, this court held that, where a judgment was rendered for the plaintiff for a part of his claim, the recording of the judgment by the plaintiff was not an acquiescence in the judgment rejecting the balance of the sum sued for. In the case of H. D. Chandler v. Oil Fields Gas Co., Inc., 2 La. App. 778, the motion to dismiss the appeal upon the ground of alleged acquiescence in the judgment was denied on the authority of Kittredge v. Grau, cited supra.”

In Planters’ Bank & Trust Co. v. Savant, 172 La. 464, 134 So. 394, 395, plaintiff sought to foreclose a mortgage on a plantation consisting of 628 acres. The wife of defendant intervened, setting up homestead rights on *101160 acres of the land, and there was judgment recognizing her rights, ordering the plantation sold in two parcels, one of 160 acres and the house upon it, and the balance separately. Plaintiff bid in both parcels, paying $2,500 for the part claimed by the wife as a homestead; $2,000 of which amount the sheriff retained in his hands subject to the further orders of the court. Subsequently plaintiff appealed suspensively from the judgment recognizing the wife’s homestead rights, and the wife moved to dismiss the appeal on the ground that plaintiff had acquiesced in the judgment by proceeding with the sale. The motion to dismiss was overruled, and, after citing article 567 of the Code of Practice, the court said:

“But we do not think that a person may be said to acquiesce in a judgment who merely abides by so much of a judgment as is in his favor. Hence it has been held that a party is not prejudiced in his appeal by recording a judgment so far as same was in his favor,” citing Kittredge v. Grau, and Augustin v. Farnsworth, supra.

The court further said:

“And even execution of so much of the judgment as he does not complain of does not constitute acquiescence in so much thereof as he does appeal from,” citing Milliken v. Rowley, 3 Rob. 253.

Inasmuch as the earlier cases cited herein (and others) are in conflict with the later cases, they must be considered as overruled.

The motion to dismiss appeal is overruled.

O’NIELL, O. J.

(concurring).

I concur in the decree on the ground that article 567 of the Code of Practice means'that a party *against whom*a judgment has been rendered cannot appeal if 7⁄8 has acquiesced in the judgment by voluntarily paying or satisfying it. The exact language of the article is: “The party *against whom*judgment has been rendered can not appeal 3⁄8 * 3⁄8 if he have acquiesced in the same, by executing it voluntarily.” The word “executing,” in the ' sense in which it is used here, cannot possibly mean issuing execution; because *the party against whom judgment has been rendered*cannot execute it, by issuing execution, against himself; and he certainly cannot execute it against anybody else. Besides, the expression “executing; *it voluntarily’’*cannot mean anything else but paying or satisfying it voluntarily. When a party executes a judgment by issuing execution against the party against whom it has been rendered, he, always and necessarily, does it voluntarily. Therefore, to give the expression “by executing it voluntarily” any other meaning than “paying or complying with it voluntarily” would lead to an absurdity.