Merchants' Nat. Bank, 48 Ark. 454; 3 Am. St. Rep. 241, and note. See also Vosburgh v. Diefendorf, 119 N. Y. 357; 16 Am. St. Rep. 836, and note.

MORTGAGES-CONVEYANCE ABSOLUTE IN FORM, WHEN TREATED AS. -A deed absolute in form given to secure a debt will be treated as a mortgage: Eiseman v. Gallagher, 24 Neb. 79; McNeel v. Auldridge, 34 W. Va. 748; Waters v. Crabtree, 105 N. C. 394; Silberberg v. Pearson, 75 Tex. 287; Armor ▼. Spalding, 14 Col. 302; Mitchell v. Fullington, 83 Ga. 301; Scanlan v. Scanlan, 134 Ill. 630; Smith v. Smith, 80 Cal. 323; Jameson v. Emerson, 82 Me. 359; Wakefield v. Day, 41 Minn. 344; Stewart v. Fellows, 128 Ill. 480; Malone ▼. Roy, 94 Cal. 341; Moisant v. McPhee, 92 Cal. 76; Rogers v. Jones, 92 Cal. 80; Gilchrist v. Beswick, 33 W. Va. 168; Hach v. Hill, 106 Mo. 18; Cobb v. Day, 106 Mo. 278; Gamble v. Ross, 88 Mich. 315; Winston v. Burnell, 44 Kan. 367; 21 Am. St. Rep. 289, and note; note to Mannix v. Purcell, 15 Am. St. Rep. 584; extended note to Hutzler v. Phillips, 4 Am. St. Rep. 607; Camp bell v. Roddy, 44 N. J. Eq. 244; 6 Am. St. Rep. 889; Bigelow v. Topliff, 25 Vt. 273; 60 Am. Dec. 264, and note.

DEBTOR AND CREDITOR-RIGHT OF DEBTOR TO APPLY PAYMENTS. - In respect to the appropriation of payments made by a debtor to a creditor who holds more than one debt against him, the debtor may generally appropriate the payments, and if he does not, the creditor can: Phillips v. Herndon, 78 Tex. 378; 22 Am. St. Rep. 59, and note; Flower v. O'Bannon, 43 La. Ann. 1042. See also Washington etc. Gas Co. v. Johnson, 123 Pa. St. 576; 10 Am. St. Rep. 553. When a tenant directs his landlord to apply certain cotton to the payment of rent, the landlord cannot apply it to the payment of an account for supplies: Atkinson v. Cox, 54 Ark. 444. See Blake v. Sawyer, 83 Me. 129; 23 Am. St. Rep. 762, and note, with cases collected discussing the application of payments by creditors.

ROCKWELL V. DISTRICT COURT OF LAKE COUNTY.

[17 COLORADO, 118.]

JUDGMENTS-EXECUTION UPON AFFIRMANCE of Judgment. When a judg. ment has been affirmed on appeal, and the cause remanded to the court of original jurisdiction, the general rule is, that the prevailing party is entitled to have execution issue upon such judgment from the court thus reinvested with the custody of the record. JUDGMENTS. — APPEAL BOND SERVES TO SUSPEND THE ENFORCEMENT OF THE JUDGMENT pending the appeal, and to give the appellee additional security for his debt in case the judgment is affirmed or the appeal dis missed; but it is not a substitute for the judgment appealed from, nor does the appellee receive it in satisfaction thereof.

Merger. — Judgment upon an Appeal Bond does not extinguish the judg. ment appealed from.

JUDGMENT ON APPEAL BOND-MERGER OF ORIGINAL JUDGMENT - ISSUB OF EXECUTION. When a judgment appealed from has been affirmed, and an action on the appeal bond has been prosecuted to judgment, and such judgment is pending on appeal, the original judgment is not merged in or extinguished by the judgment on the appeal bond, so as to prevent the issuance of execution on the former.

JUDGMENTS — WHEN RES JUDICATA. — The doctrine of res judicata is applicable only to those judgments, decrees, or orders of record which are so far material and final that a review thereof may be had through the ordinary procedure, such as appeals or writs of error. The granting or refusing of other applications or motions does not necessarily prevent a subsequent renewal thereof upon the same or different grounds, when jurisdiction over the subject-matter remains in the same tribunal. JUDGMENTS-ORDER QUASHING EXECUTION NOT RES JUDICATA. — No appeal or writ of error lies from an order of the district court quashing an execution, and the doctrine of res judicata does not apply thereto.

PETITION to reverse orders of the district court quashing certain executions. The petition is based upon the facts that Rockwell and others obtained judgment in the district court against Butler and others. This judgment was affirmed on appeal, and a mandate showing such affirmance was filed in the district court. The cause was thereafter taken to the supreme court of the United States by writ of error, but such writ was dismissed by that court for want of jurisdiction. Rockwell thereafter obtained the issuance of executions on such judgment out of the district court, but they were recalled and quashed on motion of Butler, and upon the ground that, subsequent to the affirmance of such judgment, Rockwell had prosecuted an action on the appeal bond given thereunder to judgment, which judgment had been appealed from, and such appeal is still pending and undecided.

L. C. Rockwell, for the petitioners.

H. Riddell and Hugh Butler, for the respondents.

ELLIOTT, J. The appropriateness of this proceeding as a remedy for the grievance complained of is not questioned. The argument of respondents upon the demurrer is directed to the merits of the application. Thus the record presents for determination the single question, Are petitioners, under the facts and circumstances stated in their petition, entitled to execution upon their original judgment?

When a judgment has been affirmed and the cause remanded by the supreme court to the court wherein the judg ment was originally rendered, and when the mandate of the appellate court showing such affirmance has been duly filed in the office of the clerk of the lower court, the general rule is, that the prevailing party is entitled to have execution issue upon such judgment from the court thus reinvested with the custody of the record. This is the rule of the common law, and, in this state, the express command of the statute: Free

man on Executions, secs. 13, 32; Code, sec. 399. But it is contended that an exception to the rule exists in this case. The exception is sought to be maintained upon several grounds, which will be noticed in their order.

1. It is claimed that the original judgment is merged in the judgment upon the appeal bond; or in other words, that by accepting and obtaining judgment upon the appeal bond the original judgment has been extinguished. It is scarcely necessary to discuss at length the familiar doctrine of merger, -the absorption of the less by the greater. Undoubtedly, the appeal bond has been merged in the higher security of the judgment rendered thereon. But even if it be conceded that a judgment upon a judgment merges the former judgment in the latter, the concession is not conclusive of the present controversy, since no judgment has been rendered or action brought upon the original judgment.

One of the strongest reasons why a judgment upon a judgment in the same jurisdiction, and especially in the same court, should be held to merge the former judgment in the latter, is, that otherwise the debtor might be subjected to increased costs and expenses by successive judgments, and harassed without limit by a multiplicity of record liens, executions, and other supplementary proceedings for the satisfaction of a single indivisible demand against the same party without any corresponding benefit to the creditor: Freeman on Judgments, sec. 216. But such consequences could not be entailed upon the debtor to the same extent by obtaining judgment upon an appeal bond, even though thereafter the original judgment should continue in full force and effect; besides, the judgment upon the appeal bond would give the creditor the additional benefit of execution or other relief against the surety.

It is easy to demonstrate that a judgment upon an appeal bond, under our practice, does not have the uniform effect of extinguishing the original judgment. For example, suppose, for any reason, in an action upon an appeal bond, as by a failure to produce evidence, a judgment of nil capiat should be rendered against the plaintiff, would he thereby lose all remedy upon his original judgment also? Again, suppose a judgment relating to a freehold should be appealed from and affirmed, would a judgment upon the appeal bond destroy the effect of the original judgment as a muniment of title? Examples of this kind might be multiplied. But when the bond

is given to secure a money judgment merely, the question is not so easily disposed of, and must be considered and determined upon principle, as there are no adjudications precisely in point, at least none have been cited in argument.

2. An appeal bond, under our practice, has a twofold office: it serves to suspend the enforcement of the judgment pending the appeal, thus giving the appellant an opportunity to have the judgment reviewed, and reversed if he can show the same to be erroneous; it serves, also, to give the appellee additional security for his debt in case the judgment be affirmed or the appeal dismissed. The term "debt" is here used in the sense that a judgment is a debt of record: 2 Bla. Com. 465; Freeman on Judgments, sec. 217.

In order to obtain an appeal, the statute provides, inter alia, that the appellant shall give bond with surety, "conditioned for the payment of the judgment, costs, interest, and damages in case the judgment shall be affirmed." The statute further provides that "the obligee in such bond may at any time, on a breach of the condition thereof, have and maintain an action at law, as on other bonds": Code, sec. 388. The statute recognizes the judgment as the principal debt, and the judg ment debtor as primarily liable, though as between the obligors and obligee all the obligors are equally liable upon the bond itself: Anderson v. Sloan, 1 Col. 487.

The appeal bond is a conditional obligation, whereby the obligors covenant to pay the judgment upon the happening of a contingent event, to wit, the affirmance of the judgment. If the judgment be affirmed, the obligation to pay becomes absolute. It is conceded that the payment, satisfaction, or discharge of the original judgment would relieve the obligors from liability. But the judgment debtor being primarily liable, it would seem to be contrary to all the analogies of the law that a judgment upon the appeal bond against the sureties, or against the debtor and his sureties, without satisfaction, should operate to satisfy the unpaid original judgment against the principal debtor: Chipman v. Martin, 13 Johns. 240; Bank of Chenango v. Hyde, 4 Cow. 567; White v. Smith, 33 Pa. St. 186; 75 Am. Dec. 589; United States v. Hoyt, 1 Blatchf. 326.

The judgment creditor, by force of the statute, receives the appeal bond as security for his judgment; he is not required to accept it in satisfaction of his judgment. In case of a breach of the condition of the bond, the statute authorizes the

obligee to maintain an action thereon, not merely to bring an action, but to maintain it,—that is, to recover judgment upon it; and this authority is given to the obligee without condition, without requiring him to relinquish any right upon the original judgment. There is nothing in the language of the statute to indicate that the action upon the appeal bond was intended as an alternative, rather than a cumulative remedy.

3. An appeal bond is in no sense a substitute for the judg ment appealed from. It operates to suspend the enforcement of the judgment for a limited time, but it does not take the place of nor nullify the judgment. On the contrary, notwithstanding the appeal bond, the judgment may be affirmed, and thus all barriers to its enforcement may be removed. In that case, does the appeal bond become void, and without force or effect? Clearly not; it then becomes, for the first time, an available security for the payment of the judgment. While the enforcement of the judgment is suspended by the appeal, the bond is but a contingent security, and appellee can have no remedy upon it. It is only when the original judgment becomes enforceable by affirmance, or by the failure of the appeal, that appellee can resort to his action upon the bond. Thus it is apparent that the appeal bond is not a substitute for the original judgment. Its vitality depends upon the survival of the judgment. Its fate is inseparably linked with the judgment. If the judgment be reversed, the obligation of the appeal bond becomes void; if the judgment be affirmed, the obligation remains in full force and effect. Such, in substance, is the language; such is the legal tenor and effect of the bond.

4. In some states, by statute, it was formerly provided that upon the levy of an execution the defendant might give a forthcoming or delivery bond, and thus have the levy released or discharged; that such bond, when forfeited, should have the force and effect of a judgment upon which execution might issue; and that the levy of an execution of the latter kind could not be thus released or discharged. Under such procedure, it has been held that the original judgment was merged in or extinguished by the statutory judgment based on the giving and forfeiture of the bond: Chitty v. Glenn, 3 T. B. Mon. 424; Whiting v. Beebe, 12 Ark. 548; Frazier v. McQueen, 20 Ark. 68; Brown v. Clarke, 4 How. 4; Bank of United States v. Patton, 5 How. (Miss.) 200; 35 Am. Dec. 428.