ON MOTION TO DISMISS MOTION FOR REHEARING.
ROBERTS, C. J.On the 2d day of June, 1916, appellant, by his attorney, filed a motion for rehearing herein, in which he contends that the former opinion filed by the court is not in harmony with the correct interpretation of the authorities cited by the court in support thereof, and, further, that it was unfair to appellant for the appellate court to affirm the judgment of the lower court upon a theory which the ruling of the trial court precluded from consideration, and, in order to so decide, to assume that the appellees introduced evidence not contained in the record, which would have supported the opinion upon such theory, and, further, that the appellant not having delivered the lambs and ewes before the last day of the time within which he had the opportunity of so delivering was equivalent to notice to the appellees that he had elected to deliver on the last day.
[2] Appellees-have moved to dismiss the motion for rehearing filed, on the ground that the 'original judgment against the appellant was fully discharged and paid by appellant before the filing of the motion for rehearing, and that such payment was voluntary. The motion to dismiss is accompanied by a certificate of the clerk of the district court of Bernalillo county, showing full payment of the judgment, and it is further shown in the motion that appellees have executed to appellant a full release an.cl discharge from such judgment.
Appellant contends that the motion for rehearing should not be dismissed because under the majority rule even a voluntary compliance with the judgment or decree of the court by payment or performance is no bar to an appeal or writ of error for its reversal, particularly where repayment or restitution may be enforced, or the effect of compliance may be otherwise undone, in case of reversal. In support of this contention he cites 3 C. J. p. 675; Lott v. Davis, 262 Ill. 148, 104 N. E. 199; Dakota County v. Glidden, 113 U. S. 222, 5 Sup. Ct. 428, 28 L. Ed. 981; Erwin v. Lowry, 7 How. 172, 12 L. Ed. 655; O’Hara et al. v. McConnell, 93 U. S. 150, 23 L. Ed. 840; Patterson v. Keeney, 165 Cal. 465, 132 Pac. 1043, Ann. Cas. 1914D, 232.
It must be conceded that the weight of authority is to the effect that a judgment debtor does not waive the right to appeal and to reverse the judgment for error by paying the amount thereof, either before or after taking his appeal, no matter whether the payment is made before or after execution has' issued- and been served upon him. This is so because the judgment creditor has the right and power to issue execution to enforce the judgment or decree, and -the judgment debtor by .paying and discharging the judgment presumably does not do so voluntarily; but is coerced into paying the same. That this is triie is shown by an excerpt from 2 Freeman on Judgments, § 480a, quoted in appellant’s brief, in which it is said:
“The better rule we think is, that though execution has not issued, the payment of a judgment must be regarded as compulsory, and therefore as not releasing errors nor depriving the payor of the right to appeal.”
In each of the cases cited by appellant payment was made on the judgment, while the judgment debtor had the right to cause execution to be issued and enforce its collection. These cases are all distinguishable from the present case because here appellant, when he took his appeal, executed a supersedeas bond under the provisions of section 16, c. 77, Laws 1915, by which act on his part the efficacy of the judgment was suspended; hence appellees were powerless to cause execution to be issued on the judgment and enforce the collection of the amount called for thereby.
These facts are somewhat similar to those in the Colorado case of Bull et al. v. Doss Bros. Electric Construction Co., 51 Colo. 459, 119 Pac. 156. There the defendant in error recovered judgment against the plaintiffs in error, and, in order to make the same a lien upon the real property of the judgment debtors, caused a transcript of the docket entry of such judgment to be filed with the recorder of the city and county of Denver, as provided by the Colorado statute. Thereafter the judgment debtors, plaintiffs in error, took the cause to the Supreme Court for review, applied for and secured a supersedeas, staying the execution of the judgment. Thereafter, an'd prior to a decision of the. ease in the Supreme Court, plaintiffs in error paid the judgment and had the same satisfied of record. The court held that such payment was voluntary, and that the writ must be dismissed.
One of the early leading cases on the effect of the payment of the judgment before execution issued upon the right of appeal is that of Richeson v. Ryan, 14 Ill. 74, 56 Am. Dec. 493. There Ryan recovered a judgment against Richeson. The latter paid the judgment before execution issued, and then sued out a writ of error to reverse it. The court states the question, “Did the payment operate as a release of errors,” and. then proceeds: ■
“If the judgment had been collected by execution, there would not be a d’oubt of thei right of Richeson to prosecute the writ of error. A payment made under such circumstances would be compulsory, and would not preclude him from afterwards reversing the judgment, if erroneous, and then maintaining an action to recover back the amount paid. The payment in question must equally -be considered as made under legal compulsion.”
The court held that by so paying he did not waive his right to appeal or prosecute error. We believe, from an examination of the authorities, that the correct determination of the question depends upon whether the payment of the judgment is under legal compulsion; that is, assuming that payment is made prior to. the issuance of execution, that such payment is regarded as having been been compulsory by reason of the right existing in the judgment creditor to have issued execution and to have enforced payment at the time payment is made. It is well settled that:
“If a person voluntarily acquiesces in, or recognizes the validity of a judgment, order, or decree, or otherwise, takes a position which is inconsistent with the right to appeal therefrom, he thereby impliedly waives his right to have such judgment, order, or decree reviewed by an appellate court.” 3 C. J. p. 665, § 536.
The reason for the majority rule which recognizes the right of appeal, even though the judgment be paid without execution, is that, the judgment debtor having the power to coerce payment, the payment by the judgment creditor without execution is not a voluntary acquiescence in, or recognition of, the judgment.
Here the appellees were powerless to issue execution, or in any other manner to compel payment of the judgment,' notwithstanding which the appellant voluntarily paid the the full amount of the judgment. Under these circumstances we believe that the payment amounted to a voluntary acquiescence in and recognition of the validity of the judgment which precludes him from seeking further relief therefrom in this court; hence we must hold that, where a party appeals from a judgment adverse to him in the district court and executes a supersedeas bond which stayed and suspended. all proceedings under such judgment^ and preserved the status quo pending'the'determination of the appeal and prior to a final determination of the appeal, such party voluntarily pays and satisfies such judgment; such payment amounts to á voluntary acquiescence in and recognition of the validity of such judgment, and estops appellant from further prosecuting his appeal. Hence the motion for rehearing must be dismissed;-and it is so ordered.
Hanna and Parker, J.J., concur.