On Beiiearing.
Tuesday. May 14, 1901.
Per Curiam.'5 Appellee relies in his petition for rehearing on Grim v. Semple, 39 Iowa, 570, and Burrows v. Stryker, 45 Iowa, 700, not cited in his original brief. The fact that Ferguson was not discharging a debt of his own must not be lost sight of. He was not under the slightest obligation to satisfy the debt of Poling to the Nichols-Shepard Company. Attention was called in the opinion to the rule adopted in this state to the effect that, as payment of a judgment by the defendant therein conceded its correctness, it operated to dismiss the appeal. But for the decisions there cited, it might well be said that, the appealing party should, be allowed to tempo-*28rarity submit to the decision of the court pending final adjudication, rather than allow his property to be seized and sold, and- then pay with the sheriff’s fees added. See Hayes v. Nourse, 107 N. Y. 557 (14 N. E. Rep. 508; Edwards v. Perkins, 7 Or. 149; Belton v. Smith, 45 Ind. 291. All held in the cases relied on is that payment to prevent the execution of a sheriff’s deed is not of such a character as to defeat the right of appeal; that the circumstances rebut the inference of assent to the correctness of the adjudication otherwise to be drawn from a compliance therewith. In such a case there is no acquiescence in the findings of the court, and recovery of the amount paid may be had in event of a reversal, not because of involuntary payment, but owing to the provisions of the statute requiring restitution (section 4145, Code), though money so paid might possibly be recovered on the principle that it belonged ex aequo et tono to the party paying it. Chapman v. Sutton, 68 Wis. 657 (32 N. W. Rep. 683. It is apparent that the circumstance of payment may refute any notion of acquiescence in the judgment and yet fall far short of being involuntary. Indeed-, a choice of two courses may not even be involved. Appellee also relies on Winzer v. City of Burlington, 68 Iowa, 279, and Thomas v. City of Burlington, 69 Iowa, 140. It was simply held in these cases that, as Amid city taxes, paid under protest, must have been ordered by the board of supervisors to be refunded by the treasurer, under section 870 of the Code-of 1873, and, as the county treasurer acts as the city’s agent in collecting them, the same rule should be applied after the money has passed to the city, and its return required. The only speedy and efficient remedy in such a case seems to be the payment of the taxes, and there1 after suit for their recovery. Here the remedy through a restraining order Avas simple and-speedy, and afforded full protection. No reason has been suggested for not resorting to it. While such a course was not mentioned in argument, it Avas necessarily involved in the contentions of the parties. The logical soundness of our conclusion is not questioned, *29and, as we do not regard it in conflict with, any previous decision of this court, it is adhered to.