
    No. 770.
    Thomas Winston v. Demosthene Nunez, Administrator.
    A party acquiescing in and voluntarily discharging a judgment before appealing, can not recover the amount paid in satisfaction thereof.
    APPEAL from the Eighth Judicial District Court, parish of Vermilion. Bailey, J.
    
      Olivier, Dumartrait & Breaux, for plaintiff’ and appellee. William JBJibbe and JR. 3. Berry, for defendant and appellant.
   Wyly, J.

On eighteenth October, 1866, the defendant recovered, judgment against the plaintiff for $2140 dollars and interest, and on the sixth February, 1867, he paid it. On twenty-second June following he took a devolutive appeal, and in September, 1869, he succeeded in getting the judgment which lie had paid reversed by the Supreme-. Court. He now sues for the repetition of the sum paid in satisfaction of said judgment. The court gave judgment for the plaintiff, and the-defendant appeals.

We think the court erred. Here was a voluntary execution of a judgment. It was not till four months thereafter that the devolutiveappeal was taken. That appeal would have been dismissed had the-fact sufficiently appeared to the court that the judgment had been voluntarily executed. The judgment rendered in the absence of this evidence can not benefit the plaintiff. It now appears that he acquiesced' in and voluntarily discharged the judgment before appealing. He-can not recover the amount paid in satisfaction thereof.

It is therefore ordered that the judgment appealed from be annulled,., and it is ordered that there be judgment for the defendant with costs-of both courts.  