STEPHENS, Associate Justice.
Defendants in error move to dismiss this writ of error because plaintiffs in error have voluntarily accepted the benefits of the judgment of which they complain.
The Randall & Chambers Company, a private trading corporation doing business in Fort Worth, made a conveyance of all its assets subject to execution to a trustee for the benefit of its creditors, giving preference to those named in class A (defendants in error) over those in class B (plaintiffs in error and various other creditors). Dunham, Buckley & Co., a nonresident firm, brought this suit in the nature of a creditor’s
"bill, in behalf of themselves and all others . similarly situated, alleging (inter alla) the insolvency of the Randall & Chambers Company, and graying the appointment of a receiver, which was granted, and that its assets be declared a trust fund and accordingly pro-rated among all the creditors, which relief was on final hearing denied, the jury having found against the alleged insolvency at the date of the preferential deed. The other plaintiffs in error, also, with one exception, nonresident creditors, .but not all of those in class B, made themselves parties in accordance with the prayer of Dunham, Buckley & Co. The decree sustained the preferences in the deed, and ordered the receiver to make distribution accordingly among the several creditors so before the court of the funds in his hands after payment of costs and expenses, the assets having been converted into mane pending the litigation. This fund was sufficient to cover the expenses allowed the trustee and receiver, and the claims of the preferred creditors, in full, and, in part, the claims of the other creditors. The amounts so decreed to the several plaintiffs in error were voluntarily accepted by them, as appears from the affidavit of the receiver, who, as well as the Randall & Chambers Company, the trustee,, and the preferred creditors, moves to dismiss the writ of error, counsel for plaintiffs in error having consented to this method of proof. The court allowed the trustee, on his plea for compensation and counsel expense prior to the appointment of the receiver, much less than wag claimed. Had more been allowed, plaintiffs in error must have received less than they took under the decree. Had the other seventeen creditors in class B joined in the suit, still less would have been received. Had all claimed by the trustee been allowed, nothing would have remained for class B. On the other hand, had the preferences in the deed been annulled, they must, in any event, have received more than was decreed them.
The contention in behalf of the motions to dismiss is, that the principle applied by us in the case of Twombly v. Railway, 30 S. W. Rep., 81, is applicable to this case also. That principle is thus stated in Ency. Pl.
&
Pr., vol. 3, 174, just out: “It is a settled doctrine that where, a party recovering a judgment or decree accepts the benefits thereof, voluntarily and knowing the facts, he is estopped to afterwards reverse the judgment or decree on error. The acceptance operates as and may be pleaded as a release-of error.” It is also there laid down that “the rule is the same at law and in equity.” The text is fully sustained by the numerous eases cited in the foot notes. See, also, Elliot on Appellate Procedure, sec. 150, and cases there cited. The principle has been so generally approved by the highest courts of the various States of the Hnion that we abstain from a citation of the cases. An able review of many of them may be found in the opinion of the Court of Appeals of Kentucky in Paine v. Worley, 80 Ky., 568, holding that even the execution of a judgment bars the right of appeal of him in whose behalf it is executed.
On the other hand, the Supreme Court of the Hnited States, in the
case of Erwin v. Lowry, 7 How., 184, though apparently not necessary to the disposition of that case, expressed what seems to be a contrary view, afterwards quoted, seemingly with approval, in the ease of O’Hara v. McConnell, 93 U. S., 150. That a partial execution of a judgment will not affect proceedings in error was distinctly ruled in U. S. v. Dashiel, 3 Wall., 688; but the effect upon such proceedings of a voluntary receipt of the avails of the judgment was expressly pretermitted, as an issue not raised by the facts of that case. Three of the justices, however, dissented from the view of the majority upon the question decided, on the ground that the election on the part of the plaintiff in error to have the judgment executed was a “retraxit” of his writ of error. Upon the effect of such execution of the judgment appealed from in this State, the decisions of our Supreme Court seem to be conflicting. Fly v. Bailey, 36 Texas, 119; Cravens v. Wilson, 48 Texas, 321. In the opinion in the latter case, the effect on the appeal' or writ of error of a “voluntary execution or satisfaction of the judgment by the parties” was expressly left undetermined.
In the absence of a decision by our Supreme Court, or that of the United States, clearly in point, we are of opinion that we ought to follow the strong current of American authority on the question, especially as it seems to proceed from good reason and sound policy. The rule has often been enforced by our courts that a litigant, except in the matter of pleading his defenses; can not occupy inconsistent positions. For him to accept the benefits of a judgment while prosecuting an appeal' to have it set aside as erroneous, is clearly an instance of such inconsistency; giving him, in ease of reversal, an undue advantage over his antagonist, and embarrassing the proceedings in the trial court. True, it is said in Erwin v. Lowry, supra, in support of the contrary view, that “if the judgment is reversed, it is the duty of the court to restore the parties to their rights.” But while this would doubtless be the duty of the court, would it always have the power to do so? Take this case for example. Here is the bulk of the assets of an insolvent corporation (found to have become so after the deed was made), constituting the subject matter of litigation, distributed among the several claimants by the decree. Those suing out the writ of error take down their proportions of the fund as decreed, without giving any bond except for costs. They are nonresidents, with both their persons and property, presumptively, beyond the process of the court. Suppose their writ of error succeeds and and the case is sent back for a new trial and the preferences of the deed again sustained, with increased allowances to the trustee or receiver, and further costs to be paid out of the common fund before distribution, and especially if they should become insolvent, how could the court discharge its duty of restoring the other parties to their rights? Or suppose, in such case, other creditors in class B should see fit to come into' the case, how could the court discharge its duty to the maker of the trust deed of seeing that each claimant in class B had his proportion of the fund as therein provided?
These questions suggest their own answers.
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STEPHENS, Associate Justice.
Defendants in error move to dismiss this writ of error because plaintiffs in error have voluntarily accepted the benefits of the judgment of which they complain.
The Randall & Chambers Company, a private trading corporation doing business in Fort Worth, made a conveyance of all its assets subject to execution to a trustee for the benefit of its creditors, giving preference to those named in class A (defendants in error) over those in class B (plaintiffs in error and various other creditors). Dunham, Buckley & Co., a nonresident firm, brought this suit in the nature of a creditor’s
"bill, in behalf of themselves and all others . similarly situated, alleging (inter alla) the insolvency of the Randall & Chambers Company, and graying the appointment of a receiver, which was granted, and that its assets be declared a trust fund and accordingly pro-rated among all the creditors, which relief was on final hearing denied, the jury having found against the alleged insolvency at the date of the preferential deed. The other plaintiffs in error, also, with one exception, nonresident creditors, .but not all of those in class B, made themselves parties in accordance with the prayer of Dunham, Buckley & Co. The decree sustained the preferences in the deed, and ordered the receiver to make distribution accordingly among the several creditors so before the court of the funds in his hands after payment of costs and expenses, the assets having been converted into mane pending the litigation. This fund was sufficient to cover the expenses allowed the trustee and receiver, and the claims of the preferred creditors, in full, and, in part, the claims of the other creditors. The amounts so decreed to the several plaintiffs in error were voluntarily accepted by them, as appears from the affidavit of the receiver, who, as well as the Randall & Chambers Company, the trustee,, and the preferred creditors, moves to dismiss the writ of error, counsel for plaintiffs in error having consented to this method of proof. The court allowed the trustee, on his plea for compensation and counsel expense prior to the appointment of the receiver, much less than wag claimed. Had more been allowed, plaintiffs in error must have received less than they took under the decree. Had the other seventeen creditors in class B joined in the suit, still less would have been received. Had all claimed by the trustee been allowed, nothing would have remained for class B. On the other hand, had the preferences in the deed been annulled, they must, in any event, have received more than was decreed them.
The contention in behalf of the motions to dismiss is, that the principle applied by us in the case of Twombly v. Railway, 30 S. W. Rep., 81, is applicable to this case also. That principle is thus stated in Ency. Pl.
&
Pr., vol. 3, 174, just out: “It is a settled doctrine that where, a party recovering a judgment or decree accepts the benefits thereof, voluntarily and knowing the facts, he is estopped to afterwards reverse the judgment or decree on error. The acceptance operates as and may be pleaded as a release-of error.” It is also there laid down that “the rule is the same at law and in equity.” The text is fully sustained by the numerous eases cited in the foot notes. See, also, Elliot on Appellate Procedure, sec. 150, and cases there cited. The principle has been so generally approved by the highest courts of the various States of the Hnion that we abstain from a citation of the cases. An able review of many of them may be found in the opinion of the Court of Appeals of Kentucky in Paine v. Worley, 80 Ky., 568, holding that even the execution of a judgment bars the right of appeal of him in whose behalf it is executed.
On the other hand, the Supreme Court of the Hnited States, in the
case of Erwin v. Lowry, 7 How., 184, though apparently not necessary to the disposition of that case, expressed what seems to be a contrary view, afterwards quoted, seemingly with approval, in the ease of O’Hara v. McConnell, 93 U. S., 150. That a partial execution of a judgment will not affect proceedings in error was distinctly ruled in U. S. v. Dashiel, 3 Wall., 688; but the effect upon such proceedings of a voluntary receipt of the avails of the judgment was expressly pretermitted, as an issue not raised by the facts of that case. Three of the justices, however, dissented from the view of the majority upon the question decided, on the ground that the election on the part of the plaintiff in error to have the judgment executed was a “retraxit” of his writ of error. Upon the effect of such execution of the judgment appealed from in this State, the decisions of our Supreme Court seem to be conflicting. Fly v. Bailey, 36 Texas, 119; Cravens v. Wilson, 48 Texas, 321. In the opinion in the latter case, the effect on the appeal' or writ of error of a “voluntary execution or satisfaction of the judgment by the parties” was expressly left undetermined.
In the absence of a decision by our Supreme Court, or that of the United States, clearly in point, we are of opinion that we ought to follow the strong current of American authority on the question, especially as it seems to proceed from good reason and sound policy. The rule has often been enforced by our courts that a litigant, except in the matter of pleading his defenses; can not occupy inconsistent positions. For him to accept the benefits of a judgment while prosecuting an appeal' to have it set aside as erroneous, is clearly an instance of such inconsistency; giving him, in ease of reversal, an undue advantage over his antagonist, and embarrassing the proceedings in the trial court. True, it is said in Erwin v. Lowry, supra, in support of the contrary view, that “if the judgment is reversed, it is the duty of the court to restore the parties to their rights.” But while this would doubtless be the duty of the court, would it always have the power to do so? Take this case for example. Here is the bulk of the assets of an insolvent corporation (found to have become so after the deed was made), constituting the subject matter of litigation, distributed among the several claimants by the decree. Those suing out the writ of error take down their proportions of the fund as decreed, without giving any bond except for costs. They are nonresidents, with both their persons and property, presumptively, beyond the process of the court. Suppose their writ of error succeeds and and the case is sent back for a new trial and the preferences of the deed again sustained, with increased allowances to the trustee or receiver, and further costs to be paid out of the common fund before distribution, and especially if they should become insolvent, how could the court discharge its duty of restoring the other parties to their rights? Or suppose, in such case, other creditors in class B should see fit to come into' the case, how could the court discharge its duty to the maker of the trust deed of seeing that each claimant in class B had his proportion of the fund as therein provided?
These questions suggest their own answers. An inspection of the record leads us to the conclusion that if this writ of error succeeds, the result of another trial may reduce the'amounts to which plaintiffs in error are severally entitled; hence we conclude that, as we can not say that they have not received more than in any event they would be entitled to, the ease is not an exception to the general rule, if indeed the voluntary taking of a part of a common fund which is the subject matter of litigation would be an exception in any case. The decree making distribution thereof would seem to be an indivisible one, the parties taking the several proportions adjudged of the common fund by virtue of the decree itself. We can not well distinguish the position of plaintiffs in error from that of a plaintiff who, failing to recover the full amount of an indivisible demand, appeals from the judgment for the inadequate sum, and yet accepts the amount recovered, which has often been held to be a bar to the right of appeal.
It is contended in opposition to the motions that plaintiffs in error •should be allowed to restore the money to the receiver, and in their brief upon the motions they offer to do this, if so required. In support of this contention they cite Murphy v. Murphy, 45 Ala., 123, which also cites McGreelis v. Hindle, 17 Ala., 459. In the Kentucky case above cited, the effect of an actual tender was distinctly put in issue and held not to restore the right to further prosecute the appeal. The Alabama cases were there considered, and held not to support a contrary doctrine. In this view we concur, for the reasons stated in that opinion. In this case no tender has been made, nor has any answer to the motion been filed, offering any excuse for taking down the money, though ample opportunity has been afforded.
The view we take of the law, therefore, requires us to sustain these motions, though it is not without reluctance that we do so.
Appeal dismissed.
Delivered October 19, 1895.