
    Hiler v. Hiler.
    The court reversing a judgment has inherent power to make an order of restitution, which order when made will be final and conclusive between the parties, and can not be questioned by them collaterally; and, in such case, an action may be maintained by the plaintiff in error against the defendant in error, to recover money paid by the former on the judgment prior to the reversal, in which action it will be no defense for the defendant in error to show that the money was paid voluntarily.
    Error to the District Court of Brown county.
    M. L. Hiler recovered a judgment in the Court of Common Pleas of Brown county, at the June term, 1872, Against Jacob J. Hiler and Rudolph Hiler, for $159.25 and costs.
    Jacob J. Hiler thereupon commenced a proceeding in error, in the district court, to reverse the judgment.
    During the pendency of the proceeding, one of the attorneys of M. L. Hiler informed Jacob J. Hiler, that unless 'the judgment was paid, he would cause execution to issue.
    Shortly thereafter, on October 11, 1872, Jacob J. Hiler, having failed to obtain surety in an undertaking for supersedeas, paid to the clerk of the court of - common pleas the amount due on the judgment. No execution was issued.
    At the September term, 1873, of the district court, the judgment was reversed as to Jacob J. Hiler, and it was ordered that he “be restored to all things he has lost by reason thereof.”
    The cause was remanded to the court of common pleas, where, in 1874, it was dismissed at the cost of M. L. Hiler.
    Jacob J. Hiler, in 1875, commenced an action in the Court of Common Pleas of Brown county, against M. L. Hiler, to recover the money so paid..
    An answer and a reply were filed, M. L. Hiler relying on -the fact that the payment was voluntary.
    
      The cause was submitted to the court on the pleadings and' evidence, judgment was rendered in favor of Jacob J. Hiler for the amount claimed, the district court affirmed the judgment, and on leave a petition in error was filed in this court by M. L. Hiler, to reverse the judgment of affirmance.
    
      J. G. Marshall & Thomas, and Loudon & Young, for plaintiff in error:
    The payment was voluntary. Mays v. Cincinnati, 1 Ohio St. 268; Baker v. The State, 11 Ohio St. 534; Boston & S. Glass Co. v. Boston, 4 Met. 181.
    
      White, Waters & McKnight, for defendant in error:
   Okey, J.

Under the former practice, where the precise' sum or thing to be restored appeared in the record, the writ of restitution might be awarded immediately on reversal of a judgment. But where the matter to be i’estored was not specified in, but depended on evidence dehors the record, a scire facias was issued, and the writ of restitution waa not awarded until the defendant in error had an opportunity to make a defense. Cowden v. Hurford, 4 Ohio, 374; and see Bickett v. Garner, 31 Ohio St. 28.

In Duncan v. Kirkpatrick, 13 S. & R. 292, it was held that where a judgment is reversed and an order is made that the plaintiff in error shall be restored to all things which he lost by reason of the judgment, he can not maintain an action to recover money collected on the judgment prior to the reversal, the sole remedy being scire facias. The apparent approval of that case in Cowden v. Hurford must be referred to what is said in relation to the practice, in general, with respect to restitution, for the question whether such action could be maintained was not presented or considered in Cowden v. Hurford. But the weight of authority is clearly against Duncan v. Kirkpatrick, as will appear from the cases on the subject, among which are the following: Clark v. Pinney, 6 Cowen, 297; Sturgis v. Allis, 10 Wend. 354; Maghee v. Kellogg, 24 Wend. 32; Langley v. Warner, 1 Sandf. (S. C.) 209; Cummings v. Noyes, 10 Mass. 433; Stevens v. Fitch, 11 Met. 248; Jamaica v. Guilford, 2 D. Chip. 103; Homer v. Barrett, 2 Root, 156; Raun v. Reynolds, 18 Cal. 275; McDonald v. Napier, 14 Ga. 89; Bank of United States v. Bank of Washington, 6 Peters, 8; Williams v. Simmons, 22 Ala. 425 ; Glover v. Foote, 7 Blackf. 293; 1 Stephens’ N. P. 357.

A court reversing a judgment has the inherent power to make such order of restitution. It is, in effect, a judgment; and it has been held'that an action may be maintained on a judgment rendered in this state, although such judgment-is not dormant, and an execution might issue thereon. Headley v. Roby, 6 Ohio, 521; Brooks v. Todd, 1 Handy, 169.

Without deciding whether the same thing formerly effected by scire facias might not be attained by the order of a court or judge, or still by scire facias, which, although even the name of the writ has disappeared from our statutes, has not been in terms abolished; yet a proper, and as-we think the appropriate remedy, in a case like this, is by action.

But it is said the payment was voluntary, and, therefore, Jacob J. Hiler is not entitled to recover. We do not find it necessary to determine what constitutes such voluntary payment of a judgment as will preclude the party paying-from recovering back the money paid. An objection like that goes to the question whether the original judgment should have been reversed, and that question is not before us. As the objection is now presented, it is well answered in the language of Lewis, C. J., in Breading v. Blocher, 29 Pa. St. 347: “ A judgment of restitution, given upon the reversal of an erroneous judgment, is conclusive of the matters adjudged by it. It establishes beyond further question the right of the plaintiff in error to be restored to all things which he has lost by reason of the erroneous judgment. Its justice can not be rejudged in any collateral proceeding.”

Judgment affirmed.  