Gordon v. Ellison

Wright, C. J.

In the case of Field et al. v. Johnson et al., (not reported,) decided at the last April term at Davenport, on motion, it was held that a party could not prosecute his appeal from a judgment at law, and his petition in chancery enjoining the collection of said judgment at the same time, and that the institution of said equity proceedings operated as a release of errors in the action at law.

We do not see that in principle the case differs from the one before us. Ry instituting his second action, as he had a right to do, plaintiff waived any error committed by the justice in the first case. If it should be held that the justice erred in requiring plaintiff to give security for costs, (as we clearly think he did,) and the cause should be remanded, there would be nothing left for him to do, for by the second trial and judgment the whole controvery is at an end. Such an order would therefore be practically useless, and could have no other effect than to require defendant to pay certain costs, now adjudged against the plaintiff. But the error in that decision, the plaintiff has voluntarily waived by the institution of his second action. 3 Ham. 20.

Judgment affirmed.