14 Kan. 430 | Kan. | 1875
The facts in this case are as follows: Hazlett commenced an attachment suit against McCoy in the district court of Dickinson county, and at the April Term 1870 recovered a judgment for $649.29. On the same day McCoy paid $500 in cash, and gave his note for the balance payable on or before the 1st of August next ensuing. In consideration of this Hazlett released his attachment-lien, and credited the $500 on the judgment. McCoy claims that he paid and that Hazlett received the cash and note in full satisfaction of the judgment, and that the latter agreed to cancel and discharge it of record. This Hazlett denies. Afterward Hazlett brought suit on the note before a justice of the peace, and was beaten, McCoy testifying in such action that the judgment was still in force to the amount of the note, and that the plaintiff had levied on property to satisfy it. Hazlett took no appeal from this judgment of the justice. The note itself was filed with the clerk of the district court, never having' been paid by McCoy. This action is brought by McCoy to restrain Hazlett from proceedings to collect the $149.29 as balance due upon the original judgment. A temporary restraining order was made, but upon final hearing the district' court found in favor of Hazlett, and discharged the order. To reverse this ruling this proceeding in error is brought. It seems to us that there is but a single question in the case, and that one of fact, and one upon which there was contradictory testimony. Was it agreed between McCoy and Hazlett that the $500 and the note should be in full payment and satisfaction of the judgment? If it was, the restraining order should have been made perpetual; if not, it was properly discharged. The mere giving and receiving of a note of the. debtor does not operate as a discharge of a pre-existing judgment. This will not be questioned. Upon the- trial Hazlett testified positively that he never agreed to take this note in satisfaction. McCoy testified to the contrary'. McCoy’s testimony before the justice tended to support Hazlett’s testimony here.
The judgment will be affirmed.
