Payne v. Anderson

On Application for Rehearing. It is claimed on the application for a rehearing that, while, in the reasons of the Court, it is stated that plaintiff’s judgment should be credited with the amounts realized by execution and otherwise, by virtue of it, still, in the decree this was not done. The complaint is well founded. It is besides urged, that rights to further credits should have been reserved. Either the same have or have not been claimed. If they have, they were not allowed. If they were not, they cannot be pressed, the rule being that, where a party asks less than is due him, he abandons his claim to the surplus. *980 It is, therefore, ordered aDd adjudged that our previous decree be amended, so as to credit plaintiff’s judgment with the forty-seven hundred dollars, $4700, mentioned in the opinion, and that thus altered, said decree remain undisturbed and become final. Fenner, J., recused.