Dissenting- Opinion.
Todd, J.The plaintiff obtained a judgment against the defendant, for $12,750 subject to credits amounting to about $2000, and in the same suit judgment was rendered in favor of the'defendant on a re-conventional demand for $5400. The defendant took a devolutive appeal to this court, and the plaintiff, in his answer to the appeal pray» that the judgment in reconvention against him be reversed.
The counsel for the defendant in this court denies the right of the plaintiff to demand the reversal of the judgment in favor of the defendant or to ask an amendment of the judgment in any respect on the ground that the plaintiff had acquiesced in the judgment.
It further appears that this alleged acquiescence was based upon the following facts:
Both plaintiff and defendant obtained an order of appeal from the judgment devolutive and suspensive. Defendant Wise alone perfected Ids appeal, the same being devolutive.
Plaintiff, a few days after the order of appeal was rendered, caused execution i,o issue, and in the writ of execution the amount of the judgment of Wise, defendant against him, for $5400, was credited on the judgment in his favor against Wise, and the writ issued for the balance, and the property specially mortgaged tp secure the debt and recognized in tlie judgment, was seized and sold, and adjudicated to the plaintiff.
The question, and the only one now before the court for determination, is whether the acts of tlie plaintiff and appellee with respect to this judgment, can he held .to establish his acquiescence in the judgment in contemplation of law, so as to debar him from seeking to reverse it, or change it in his favor.
After a thorough consideration of the matter and a close re-examination of the authorities bearing on it, I am constrained to answer this question affirmatively.
There were two distinct judgments rendered .by the district court, one in favor of plaintiff for the amount of his demand, and recogniz*85ing tlie special mortgage securing it on tlie mortgaged property. The other on a claim in no maimer connected with t]ie principal demand, and urged by way of reconvention.
Tne judgment in the principal demand, whilst allowing, by its terms, certain credits oil this demand, directs or allows no credit for or on account of the reconventional demand. The judgment did not, therefore, by its terms, require that this credit for the reconventional demand, liquidated by a judgment though it was, should have been inserted or allowed in the writ or indorsed upon it.
In our former decision the opinion expressed why this crediting the one judgment upon the other and causing execution to issue for the balance did not show an acquiescence, was, because such a course was not voluntary, but compulsory.
The plaintiff was not compelled to execute his judgment at all; at least, if he desired to bo safe from any complication or risk, and execute his judgment in its entirety, he might have waited until the defendant’s appeal was tried.
He might have had execution issue on his judgment, giving only the credits that the judgment itself allowed. It was a distinct, separate and independent judgment from the other on the reconventional demand ; and though such execution might have been met by an injunction, yot suoli injunction could only have affected the execution of plaintiff’s judgment to the amount of tlie judgment in reconvention, and plaintiff could thus have gotten the benefit of his judgment and the right to execute it for the excess of one judgment over the other, without contributing any act of his own to accomplish this object.
If plaintiff had gone forward and paid this judgment, and thus have gotten it out of his way, no one could then doubt that he had acquiesced in it. What he did do was essentially equivalent to its payment. By crediting it on his judgment he took it in payment _pro tanto of tlie judgment. Two judgments stood against each other for different amounts, he took both under his control, imputing one, so far as it went, to the payment of the other.
I cannot, from any standpoint, see how this disposition of the defendant’s judgment could be regarded in any other light than the virtual execution of the judgment. That when the credit was given for its amount, that it was thereby extinguished, and of course, fully executed.
Thus concluding, I am of opinion that the plaintiff by his acts lost the right of changing or amending the judgment in his favor either *86through an appeal or by prayer for an amendment in his answer to the appeal.
I therefore dissent from the opinion and decree of the majority of the court.
Justice Watkins concurs in this opinion.