Bickett v. Garner (31 Ohio St. 28, 1876)

Gilmorb, J.

When the erroneous judgment was reversed, the plaintiff' in error was entitled to a restoration of all that he had lost thereby. Tidd’s Pr. 1186; Evans v. Stephens, 26 N. H. 117.

The amount that was lost in this case was rendered certain by the sheriff’s return upon the execution, which was a matter of record in the court of common pleas, to which the cause was remanded for further proceedings on the-reversal of the judgment by the supreme court. This being so, and the financial condition' and property of the parties remaining the same as when the judgment was collected, a judgment of restitution should have been granted upon the revérsal of the judgment. 2 Salk. 588; Tidd’s Pr. 1033; Trow v. Messer, 32 N. H. 361; Cowder v. Hanford, 4 Ohio, 374; Murray v. Emmons, 6 Foster, 523; Pangburn v. Ramsey, 11 Johns. 141; Gay v. Smith, 36 N. H. 435.

When the case came before the court of common pleas on mandate, if the plaintiff' in error had moved for an order of restitution and an award of execution for the-amount collected, with interest and costs, it would have-been the duty of the court to have granted the motion,. .notwithstanding the fact that the judgment that had been reversed may have been just, and that Garner on another trial would probably again obtain judgment against Bick