Kendrick v. CainKendrick v. Cain
Plаintiff’s action is brought under the wrongful death statute, G.S. 28-173, et seq., against defendants as joint tort-feasors.
Appellee Cain contends that plаintiff can have only one recovery and that when plaintiff accepted thе full amount of the judgment entered against defendant Haddock, plaintiff’s appeаl became moot. The statute (G.S. 28-173, et seq.) contemplates only one cause of аction, and when the action is brought by the personal representative, the judgment is 'conclusive on other persons, and the right given by the statute is exhausted. 16 Am. Jur., Death, § 161, p. 103.
Clearly, the statute contemplates that if plaintiff be entitled to recover at all, he is entitled -to recover as damages one compensation in a lump sum.
Ledford v. Lumber Co.,
Although а covenant not to sue, procured by one tort-feasor, does not release the other from liability,
Ramsey v. Camp,
In the case of
Sircey v. Rees’ Sons,
“ ‘It is to be observed in respect to the point above considered, where the bar accrues in fаvor of some of the wrongdoers by reason of what has been received from оr done in respect to one or more others, that the bar arises, not from any рarticular form that the proceeding assumes, but from the fact that the injured party hаs actually received satisfaction, or what in law is deemed the equivalent. Therefore, if he accepts the satisfaction voluntarily made by one, that is a bar to all. And so a release of one releases all, ... It is immaterial whether the satisfaction is obtained by judgment and final process in execution of it, or by amicable adjustment without any litigation of the claim for damages. The essential thing is satisfaction. . . .”
Further, as a general rule this Court will not hear an appeal when the subject matter of the litigation has been settled between the parties or has ceased to exist.
Cochran v. Rowe, 225
N.C. 645,
In 4 Am. Jur. 2d, Appeal and Error, (3) Acceptance of Benefits of Judgment or Decree, § 250, p. 745, it is stated:
“A party who accepts an award or legal advantage under an оrder, judgment, or decree ordinarily waives his right to any such review of the adjudication аs may again put in issue his right to the benefit which he has ’accepted. This is so even though the judgment, decree, or order may have been generally unfavorable to the appellant.”
.Appellant contends that his acceptance of the full amount of the judgment against defendant Haddock did not affect his right to appeal, sinсe the word “satisfied” was not entered upon the judgment index. There is no merit to this. contеntion, since the-effect of G.S. 1-239 is to make the clerk .the statutory agent of the ownеr of a judgment, and it is the clerk’s duty to pay money received thereunder to the pаrty entitled thereto. The. clerk and his surety would be liable to the owner of the judgment for аny loss which he might suffer because of the clerk’s failure to perform his statutory duty. There is nо duty on the party making payment to require the clerk to make an entry on the judgment dоcket.
Dalton v. Strickland,
In the instant case, the record shows that defendant Haddock paid the sum nеcessary to satisfy the judgment to the clerk, and the clerk duly paid the sum to the party entitled to it. Thus the -plaintiff is not aggrieved by the failure. of the clerk to enter the word “satisfied” on the judgment docket.
Here, the subject of the litigation has’been disposed of by entry of judgment and satisfaction has been obtained -by plaintiff by acceptance of the amount awarded by the judgment. Upon acceptance of the “fruits of the judgment” plaintiff’s action against defendant Cain was extinguished.
Appeal dismissed.