Opinion
(Filed 18 March, 1902.)
Appeal — Waiver — Payment of Judgment — The Code, Sec. 886 — Justice of the Peace.
A defendant by voluntarily paying a judgment taken against him before a justice of the peace waives his right of appeal.
ACTION by W. J. Cowell against N. P. Gregory, heard by Brown, J., at September Term, 1901, of CAMDEN. From a judgment for the plaintiff, the defendant appealed.
G. W. Ward for plaintiff.
E. F. Aydlett and P. H. Williams for defendant.
DOUGLAS, J., dissenting.
At the time of the rendition of the judgment in the justice's court the defendant refused to appeal, and paid the judgment voluntarily to the constable and the recovery to the plaintiff in the action. Within the time allowed by law for appeals, the defendant filed the proper notice of appeal to the Superior Court, and the appeal was sent forward. On the call of the case in the Superior Court the plaintiff lodged a motion to dismiss the appeal, upon the ground that the defendant had waived and renounced his right to appeal, and had voluntarily paid the judgment.
The following were the facts as found by the court: "The justice of the peace heard the cause and rendered judgment upon all the issues for plaintiff, in the sum of $32.63; that at the time, and within an hour after judgment rendered and announced, and in presence of the justice, one Cartwright said to defendant, `Why don't you appeal?' and defendant announced to the justice that he did not wish to (81) appeal, that he wished to pay the debt and get rid of it, and asked for the bill of costs; no execution was issued, and no request or demand made on the plaintiff to pay the judgment; that then and there the defendant paid the judgment and costs into the hands of the constable for the plaintiff, and the justice satisfied and discharged the judgment at the request of the defendant."
His Honor dismissed the appeal, and upon his holding the defendant appealed to this Court. There was no error in the proceeding below.
The plaintiff cited the cases of Suttle v. Green, 78 N.C. 76, and S. v. Chastain, 104 N.C. 900, but they have no application here. In those cases there were notices of appeal, a withdrawal of the same, and then renewals of the appeal. There was no payment or discharge in whole or in part of the judgment, voluntary or involuntary. In the present case the judgment was not only paid, but the defendant expressed his purpose and desire to "pay the debt and get rid of it." The judgment had thereafter no existence for any purpose. 2 Cyc., 647, 648.
Section 886 of The Code, from the view we have taken of the case, has reference only to cases where payments have been made involuntarily, as a payment made of a judgment to prevent execution from being issued, with the attendant additional charges, costs and inconveniences.
No error.