On Rehearing.
Fenner, J.The only question open for our consideration under the terms of our order granting a rehearing is; Whether the plaintiff hap cut off his right to ask a reversal of the judgment rendered against him on the reconventional demand of defendant because he has '• acquiesced in the same by executing it voluntarily." C. P. art. 567.
What are the facts
Plaintiff recovered a judgment against defendant for (say) $15,000, and, in the same decree, defendant recovered a judgment against plaintiff for $5400.
Defendant appealed devolutively from the whole decree, thus bringing before us for review both judgments.
In this case, the cause of action in the reconventional demand did not grow out of, or have any connection with, the principal demand, but was entirely distinct from it — the reconvention being allowed solely because plaintiff was a non-resident.
The two judgments were as separate and distinct as if rendered in different actions — so much so that, had one of the judgments only been appealable, it alone could have been appealed from and the other could not have been reviewed. 3 Rob. 387; 10 Rob. 438; 11 Rob. 12; 5 Ann. 105: 6 Ann. 579; 14 Ann. 429.
*83Proin this essential separateness of the two judgments, it follows that the execution of one, while implying acquiescence in it, by no means implied acquiescence in the other. To deny plaintiff’s right to execute his judgment would be to give to defendant’s devolutive appeal the effect of a suspensive appeal.
Had plaintiff simply issued execution for the whole amount of tlio judgment in his favor, certainly no inference of acquiescence in the other judgment could have been drawn. But had he done this, he would have exceeded his legal right. Why? Because the two judgments co-existing, and being equally exigible, the law operated a compensation between the two — a provisional compensation to receive -effect as long as both judgments existed or until one of them had been reversed on appeal. Sandel vs. George, 18 Ann. 526; Lemane vs. Lemane, 27 Ann. 694.
If he had issued execution for the whole, the defendant’s right, by injunction, to reduce it to the extent of the excess over his own judgment, would have been perfectly clear under C. P. 298, par. 10.
Is plaintiff’s case to be prejudiced because he has respected the legal rights of defendant and the plain mandate of the law, by issuing execution only for the excess of his judgment over that of defendant?
If plaintiff were ashing an amendment of the judgment in his favor, he would be precluded by his voluntary execution of it; but as to the judgment against him, there is no such acquiescence. He has simply .submitted to the effect which the law gave to it as provisionally compensating his own judgment so long as it existed uureversed. This submission he could not avoid; it was forced and not voluntary; and does not constitute such voluntary acquiescence as precludes him from .ashing that, in our review of that judgment, we should consider his rights as well as those of defendant.
The correctness of plaintiff’s judgment was never questioned below or in this Court. It greatly exceeded that of defendant in reconvention. It was not suspensively appealed from; and upon what principle he could be refused the right of executing it to the extent of its excess, is certainly not apparent. Nor can we see how the exercise of this plain right should involve acquiescence in the other judgment.
Had he apjilied to the clerk for a writ of fi. fa. for the whole amount of his judgment, and had the clerk refused to issue it without crediting the amount of the concurrent judgment against him, and had he applied to the court for relief by rule on the clerk, it is manifest that the 'court would have sustained the clerk and refused relief. This makes *84it clear that, in the execution issued, he exercised his whole legal right and waived none.
It is, therefore, ordered that, our former decree herein remain undisturbed.
Todd and Watkins, JJ., dissent, and the former reserves the. right, to file reasons hereafter.