An action to recover money paid upon a judgment subsequently reversed is not open to the objection that it is an attempt to overhaul a prior judgment. The sole question is: was the payment made under compulsion? If execution had issued before payment was made, the answer, it is agreed, must be in the affirmative.1 And while there are a few cases to the contrary,2 the weight of authority supports the view that a valid judgment (though it subsequently proves erroneous), without the issue of execution and without actual threats to seize or sell the judgment debtor's property, is sufficiently coercive to raise an obligation, when the judgment is reversed, to make restitution.3

1 See Keener, "Quasi-Contracts," p. 415.

"Newdigate v. Davy, 1692-93, 1 Ld. Raym. 742; Farrow v. Mayes, 1852, 18 Q. B. 516; Hollingsworth v. Stone, 1883, 90 Ind. 244; Murray v. Moorer, 1840, Cheves (S. C.) 111. Contra: Bailey v. Buell, 1872, 50 N. Y. 662, (but see Trimmer v. City of Rochester, 1892, 130 N. Y. 401, 405; 29 N. E. 746).

3 Elston v. City of Chicago, 1866, 40 111. 514; 89 Am. Dec. 361.

4 Logan v. Sumter, 1859, 28 Ga. 242; 73 Am. Dec. 755; Field v. Yeaman, 1907, 31 Ky. Law Rep. 12; 101 S. W. 368; Davis v. Gott, 1908, 130 Ky. 486; 113 S. W. 826; Pope v. Benster, 1894, 42 Neb. 304; 60 N. W. 561; 47 Am. St. Rep. 703; Wisner p. Buckley, 1836, 15 Wend. (N. Y.) 321. And see Ewing v. Peck, 1855, 26 Ala. 413.

5 Catterlin v. Somerville, 1864, 22 Ind. 482; Hale p. Passmore, 1836, 4 Dana (34 Ky.) 70; Cocke v. Porter's Extrs., 1840, 2 Humph. (21 Tenn.) 15.

It was usual, at the common law, to incorporate in the judgment of reversal a direction that the appellant "be restored to all things which he has lost on occasion of the judgment aforesaid." Pursuant to such direction a writ of restitution issued, or in case the amount paid by the appellant did not appear of record, process in the nature of an order to show cause, known as a scire facias quare restitutionem habere non debit. In some States a similar remedy has been provided by statute.1 Neither the "antiquated remedy by scire facias," however, nor a statutory substitute therefor, is exclusive of the appellant's right to enforce restitution in a separate action,2 although it has been held that where an order of restitution is incorporated in the judgment, assumpsit will not lie "because the plaintiff would otherwise be permitted to turn his judgment into a simple-contract debt."3

1 Dupuy v. Roebuck, 1845, 7 Ala. 484; Ewing v. Peck, 1855, 26 Ala. 413; Raum v. Reynolds, 1861, 18 Cal. 275; Hosmer v. Barret, 1794, 2 Root (Conn.) 156; Martin v. Woodruff, 1850, 2 Ind. 237; Keehn v. McGillicuddy, 1898,19 Ind. App. 427 ; 49N.E. 609; Chicago, etc., R. Co. p. Adams, 1901, 26 Ind. App. 443 ; 59 N. E. 1087; Stevens v. Fitch, 1846, 11 Metc. (Mass.) 248; Clark v. Pinney, 1826, 6 Cow. (N. Y.) 298; Sturges v. Allis, 1833, 10 Wend. (N. Y.) 354, (In this case a new trial had been ordered and the original suit was still pending: but see People v. Cornell, 1909, 65 Misc. Rep. 452; 121 N. Y. Supp. 972, where the restitution of a fine was refused after reversal of conviction and order of new trial, appeal having been taken to the Court of Appeals on the judgment reversing conviction.); Haebler v. Myers, 1892, 132 N. Y. 363 ; 30 N. E. 963 ; 15 L. R. A. 588 ; 28 Am. St. Rep. 589; Metschan v. Grant County, 1899, 36 Or. 117 ; 58 Pac. 80; Travellers' Ins. Co. v. Heath, 1880, 95 Pa. St. 333. See United States Bank v. Bank of Washington, 1832, 6 Pet. (U. S.) 8; Duncan v. Kirk-patrick, 1825, 13 Serg. & R. (Pa.) 292; Beard v. Beard, 1885, 25 W. Va. 486; 52 Am. Rep. 219. But see, contra, Gould v. McFall, 1888, 118 Pa. St. 455; 12 Atl. 336; 4 Am. St. Rep. 606.

2 Winston v. Nunez, 1873, 25 La. Ann. 476; Ritchie v. Carter, 1901, 89 Mo. App. 290, (but see Campbell v. Kauffman Milling Co., 1907, 127 Mo. App. 287; 105 S. W. 286).

3 Glover v. Foote, 1844, 7 Blackf. (Ind.) 293 ; Campbell v. Kauffman Milling Co., 1907, 127 Mo. App. 287; 105 S. W. 286; Lott v. Swezev, 1859, 29 Barb. (N.Y.) 87; Scholey v. Halsey, 1878, 72 N. Y. 578, (but see Third Ave. R. Co. v. Klinker, 1899, 29 Civ. Proc. Rep. 51; 58 N. Y. Supp. 136); Chapman v. Sutton, 1887, 68 Wis. 657; 32 N. W. 683. See Hipp, v Crenshaw, 1884, 64 la. 404; 20 N. W. 492.

Sec. 233. Same: Recovery By Person Other Than The Judgment Defendant

One who, as the real party in interest, pays a judgment which is subsequently reversed, may recover the amount paid though not a defendant of record in the first action.4 In like manner, it seems, a surety who pays a judgment against his principal may upon reversal enforce restitution;5 although there are cases holding, on the contrary, that the surety must look to his principal.6 Since payment by a garnishee discharges his obligation to the defendant in the principal action, the subsequent reversal of the judgment entitles such defendant, and not the garnishee, to enforce restitution.7