
    Nill and Another v. Comparet.
    
      Wednesday, May 29.
    The only effect of an appeal to a Court of Error, when perfected, is to stay execution upon the judgment from which it is taken. In all other respects, the judgment,' until annulled or reversed, is binding upon the parties, as to every question directly decided.
    It is no bar to an action upon a judgment, that the judgment has been removed by writ of error to a Superior Court.
    APPEAL from the Allen Common Pleas.
   Davison, J.

The appellee, who was the plaintiff, sued Will and Miller upon a promissory note for the payment of $311. The note bears date February 1, 1858, and was payable to one Thomas Meegan, who assigned it to the plaintiff. Defendants’ answer contains five paragraphs, to which the plaintiff replied. There was a verdict for the plaintiff, upon which the Court, over a motion for a new trial, rendered judgment. This case is before us upon a reserved question of law, arising upon a demurrer to the reply to the fourth and fifth paragraphs of the answer.

The fourth paragraph alleges that Meegan, before he assigned the note, was, and still is, indebted to Will $700, upon an account, which is filed with the pleading and offered as a set-off against the plaintiff’s demand. The fifth states these facts: Will is the principal in the note in suit, and Miller is his surety. During the year ending in May, 1857, Meeqan, the assignor of the note, was the citv treasurer of o * cj > v Fort Wayne, and Will became his immediate successor in office. In that month he was qualified as such successor, when it became the duty of Meegan to pay over to him, Will, any balance then in the city treasury. At that time, Meegan represented to Will that there was a balance of $781, then on deposit in Hamilton's Bank, in the city of Fort Wayne; and Will, relying on his representation, receipted to him, Meegan, for that amount, as such treasurer, and took from him authority to draw the same out of the bank. After Will became treasurer, Meegan continued to perform the duties of the office, as Will's deputy, and still continued to deposit moneys received into the city treasury in Hamilton's Bank. At the time the note sued on was given, Will was not advised of the true state of the bank account, or of the state of the deposits therein; and it was then stipulated that they, Meegan and Will, should subsequently meet and settle that account, and if any balance should be found due to Will, the same should stand as a credit on said note. As stipulated, the parties met, and upon examination of said accounts a balance of $325 was found due from Meegan to Will’, and Meegan having refused to credit the note with the amount so found due, the same is, therefore, a proper set-off in this action. It is averred that Oomparet, the assignee, had, at the time of the assignment, full notice of Will's claim against Meegan.

To these defenses the plaintiff replied: that on April 10, 1858, an action was pending in the Allen Common Pleas, wherein the present plaintiff was then plaintiff, aud the present defendants were then defendants, in which action, so pending, the same identical matters in said defenses contained, were pleaded by said Will, in said last mentioned action, as a set-off to the cause of action then set forth in the plaintiff’s complaint. Thgt such proceedings were had in said action, that the same court, at its April term, 1858, adjudged and determined that Meegan was not indebted to Will, as alleged, and that' the defendants, as to the matter so pleaded, take nothing as against the plaintiff; from which judgment and determination, Will and Miller, the then, and now, defendants, appealed to the Supreme Court, where that cause is now pending; wherefore, &c. Defendants demurred to this reply; but their demurrer was overruled, and they excepted. Against this ruling, it is insisted that the appeal having been perfected, the judgment appealed from became inoperative during the pendency of the appeal in the Supreme Court, and the matter determined in the action, in which the judgment was rendered, ceased to be “ res adjudicataP This position is not, in our opinion, correct. Indeed, the only effect of an appeal to a Court of Error, when perfected, is to stay execution upon the judgment from which it is taken. In all other respects, the judgment, until annulled or reversed, stands binding upon the parties, as to every question directly decided. Cole v. Connolly, 16 Ala. 271. And it has been expressly decided, that “ It is no bar to an action upon a judgment, that the judgment has been removed by writ of error to a Superior Court.” Suydam v. Hoyt, 1 Dutchers’ N. J. Rep. 230. The reply seems to be well pleaded, and must be held effective.

Wm. II. Combs, for the appellant.

Withers and Morris, for the appellee.

Per Curiam.

The judgment is affirmed, with 5 per cent, damages and costs.  