Kendrick v. Cain
159 S.E.2d 33
N.C.
1968
Check Treatment
BRANCH, J.

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., 183 N.C. 614, 112 S.E. 421; Bell v. Hankins, 249 N.C. 199, 105 S.E. 2d 642. He is not entitled to recover the whole sum from each of the joint tort-feasors. Watson v. Hilton, 203 N.C. 574, 166 S.E. 589.

Although а covenant not to sue, procured by one tort-feasor, ‍‌‌‌‌‌​​​​‌​‌‌‌​‌‌‌​‌‌‌‌​​​​​​​​‌‌​​​‌‌‌‌‌‌‌‌​​​​‍does not release the other from liability, Ramsey v. Camp, 254 N.C. 443, 119 S.E. 2d 209, it is a well settled doctrine of the law that a release оf one joint tort-feasor ordinarily releases them all. MacFarlane v. Wildlife Resources Com., 244 N.C. 385, 93 S.E. 2d 557; King v. Powell, 220 N.C. 511, 17 S.E. 2d 659.

In the case of Sircey v. Rees’ Sons, 155 N.C. 296, 71 S.E. 310, plaintiff, employee оf Southern Railway Company, was injured when employer’s train was being backed onto dеfendant’s siding. Plaintiff alleged defendant was negligent in placing tan bark so near the track as to cause his injury. The complaint stated facts sufficient to show joint negligencе of defendant and the railway company. At the trial, defendant relied on a relеase given by plaintiff to Southern Railway Company. The trial court dismissed the action. Affirming thе decision of the trial court, this Court quoted with approval from Cooley, J., on Torts as follows:

“ ‘It is to be observed in respect to the point above considered, whеre the bar accrues in favor of some of the wrongdoers by reason of what hаs been received from or done in respect to one or more others, thаt the bar arises, not from any particular form ‍‌‌‌‌‌​​​​‌​‌‌‌​‌‌‌​‌‌‌‌​​​​​​​​‌‌​​​‌‌‌‌‌‌‌‌​​​​‍that the proceeding assumes, but from thе fact that the injured party has 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 *722 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, 36 S.E. 2d 75; In re Estate of Thomas, 243 N.C. 783, 92 S.E. 2d 201; Simmons v. Simmons, 223 N.C. 841, 28 S.E. 2d 489.

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 lеgal advantage under an order, judgment, or decree ordinarily waives his right to any such rеview of the adjudication as 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 affеct his right to appeal, since the word “satisfied” was not entered upon the judgment indеx. There is no merit to this. contention, since the-effect of G.S. 1-239 is to make the clerk .thе statutory agent of the owner of a judgment, and it is the clerk’s duty to pay money recеived thereunder to the party entitled thereto. The. clerk and his surety would be liable tо the owner of the judgment for any loss which he might suffer because of the clerk’s failure tо perform his statutory duty. There is no duty on the party making payment to require the clerk tо make an entry on the judgment docket. Dalton v. Strickland, 208 N.C. 27, 179 S.E. 20.

In the instant case, the record shows that defеndant Haddock paid the sum necessary 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.