Hall v. Lacy

37 Pa. 366, 1861 Pa. LEXIS 11

• Court: Supreme Court of Pennsylvania
• Decided: January 7, 1861
• Status: Published

Opinion

The opinion of the court was delivered, by

Strong, J.

We cannot undertake to review this record. The plaintiffs in error recovered a verdict in the court below on the 25th of August 1857, and judgment was entered on the verdict six days afterwards. A writ of habere facias possessionem, with a fi. fa. for costs, was then issued, the costs were collected, and the possession was delivered. After this, it is too late for plaintiffs to complain of the judgment. They have acquiesced in it for years, and they havé taken its fruits. In Smith v. Jack, 2 W. & S. 101, it was held that the suing out ajñ.fa., and the collection of the costs upon a judgment in ejectment, is inconsistent with the prosecution of a writ of error by the same party, which, under such circumstances, will be dismissed on motion of the defendant in error. A very similar decision'was made in Ullery v. Clark, 6 Harris 148. The ground of these decisions is, that suing out an execution and enforcing the judgment is an election to take it as rendered, and inconsistent with any assignment of errors.

Writ'of error dismissed.

Thompson, J., having been of counsel for defendants, did not sit in this case.