
    No. 11,247
    Orleans
    AMERICAN MULTIGRAPH SALES CO. v. PEACH-BLO PRODUCTS, INC.
    (March 12, 1928. Opinion and Decree.)
    
      (Syllabus by the Court)
    O'N MOTION TO DISMISS
    1. Louisiana Digest — Appeal — Par. 509; Estoppel — Par. 41, 42.
    Where plaintiff seeks to have judgment amended after signature to correct an error and be is joined by defendant in a motion to that effect, defendant will be estopped to complain of plaintiff’s subsequent effort to have tbe judgment corrected on appeal. A motion to dismiss filed by defendant upon tbe ground of estoppel by acquiescence under C. P. 567 will under tbe circumstances be denied.
    Appeal from Civil District Court, Div. “D”, Hon. Porter Parker, Judge.
    Action by American Multigrapb Sales Company against Peacb-Blo Products, Inc.
    There was judgment for defendant and plaintiff appealed.
    Motion to dismiss denied.
    L. R. Wertheimer, of New Orleans, attorney for plaintiff, appellant.
    L. R. Hoover, of New Orleans, attorney for defendant, appellee.
   ON MOTION TO DISMISS

WESTERFIELD, J.

Plaintiff originally brought a personal action asking only for a monied judgment, for tbe balance alleged to be due on certain merchandise sold defendant by plaintiff. By supplemental petition a vendor’s lien was asserted and a sequestration asked and obtained.

Tbe sequestration was bonded by defendant and an answer filed. When tbe case was called for trial, no defense was made by defendant, and a judgment ordered “as prayed for”. In writing up tbe judgment tbe minute clerk followed tbe prayer of tbe original petition and consequently omitted any reference to plaintiff’s lien or tbe writ of sequestration. Tbe error was not discovered until after tbe delays for a new trial bad elapsed and an attempt made by plaintiff to execute tbe judgment, by issuing a fi fa which was returned nulla bona.

Thereafter on a joint motion, filed by counsel for plaintiff and defendant in which tbe error was recited the judgment was amended, as prayed for in tbe motion, by adding tbe words “with recognition and maintenance of vendor’s lien and (privilege on tbe property seized”.

Subsequently, and for some reason, perhaps because of tbe surety on tbe sequestration bond, tbe plaintiff, just prior to tbe expiration of tbe year, obtained an appeal from tbe original judgment. Defendant moves to dismiss tbe appeal upon tbe ground that in attempting to execute tbe judgment plaintiff acquiesced in tbe judgment and is therefore estopped under Article 567 C. P., which provides that a party against whom a judgment has been rendered cannot appeal if be acquiesces in tbe judgment by executing it voluntarily. This article has been held to apply to plaintiff in whose favor judgment has been rendered, as well as defendant, against whom tbe judgment runs. State vs. Howell, 139 La. 336.

But in the instant case whether applicable to this plaintiff, or otherwise, we will not consider at tbe instance of defendant, who through tbe same counsel admitted tbe error and asked and obtained an amendment of tbe judgment in tbe trial court. Having joined plaintiff in an effort to bave tbe judgment corrected by amendment defendant is estopped, and can not assume an inconsistent position when defendant seeks to bave it corrected by what is regarded as a sounder and safer method, appeal. Whatever effect' tbe article rf tbe Code of Practce may bave on this appeal, defendant can not assert it. Lichtain vs. Southwestern Box Co., 121 La. 176.

The motion to dismiss is denied.  