Kennedy v. O'Brien — 2 E.D. Smith 41

Majority

p. 41

Owen Kennedy v. James O’Brien.

Headnote

The proper course, where a party, who has succeeded upon appeal is entitled to a restoration of money paid upon a judgment, in one of the lower courts, is a motion in this court for restoration; and on that motion being granted, the decision becomes a part of the judgment in this court, and the amount so paid can be collected by execution, with the costs.

Tras was an action in the Marine Court, to recover money paid by the plaintiff on a judgment of that court, which was afterwards reversed upon appeal. The plaintiff proved his payment of the money upon an execution issued pursuant to the judgment. He then offered in evidence a copy of an order, entered in the appellate court, reversing the judgment, and which was certified by the clerk, without a seal. No judgment of reversal had been entered.

The justice found for the defendant, and the plaintiff appealed.

Aa/ron Woodma/n and Chas. W. Black, for the appellant.

A. Wash, for the respondent.

There can be no doubt of the prbpriety of the decision in the court below. The action was brought to recover back moneys paid on execution, upon the ground of reversal of the judgment by this court.

The evidence offered was not sufficient to .establish that fact. There should have been a judgment entered upon the appeal and decision in this court, and the judgment-record would have been the proper evidence. The witness who had custody of the judgment books, stated that no judgment had been entered.

The proper course, where a party appealing is entitled to restoration, is a motion in this court for restoration; and on

p. 42

that motion being granted, it becomes a part of the judgment in this court, and the amount can be collected by execution, with the costs.

The judgment in this case must be affirmed.