99 N.W. 68 | N.D. | 1904
The defendant moves to dismiss the appeal to this court from a decree entered in his favor in the district court. The grounds of the motion to dismiss are that the appellant voluntarily paid the judgment prior to the appeal; that the judgment was fully paid, and for her benefit, and at her request, and formally satisfied of record; and that her right to appeal was waived by such voluntary payment and satisfaction. The facts, as presented by the moving papers and counter showing, are as follows, so
“Mem. Clark vs. Signors. Amount claimed by plaintiff if payment is made by owner:
*42 Amount of sale April 8, 1903....................... $ 4,892 25
Interest at 12 per cent since sale................... 151 75
Paid by Mr. Clark to redeem..............86,596 64
Interest since June 6, 1903, at 12 per cent.. 79 26
--- 6,665 90
811,719 90”
After this memorandum was delivered by Mr. Pollock to the deputy sheriff in the presence of Signor, Mr. Douglas, as attorney for the appellant, had an interview with Mr. Newman, one of Clark’s attorneys. What the subject between them was is subject to misunderstanding, and their memories of such conversation differ. Mr. Douglas claims that he asked for a satisfaction of the judgment for costs as docketed, for $78.40. Mr. Newman says that a satisfaction of the whole judgment was called for. Later in the same day Mr. Newman delivered to Mr. Douglas a satisfaction in full of said judgment, with the certificate of redemption issued to respondent on his redemption from said first mortgage sale, and also the certificate of sale issued on the sale to Clark under the judgment in this suit. Mr. Newman had received a check' for the whole amount of Clark’s judgment and the full amount paid by him in redeeming from the prior judgment, with interest, from Mr. Wheelock at the bank, before the satisfaction and certificates were turned over to him. All these papers were turned over at the bank to Mr. Lorshbaugh, to be filed and recorded, and the abstract of title completed, showing these various transactions, as well as the mortgages to Sarles and the deed to Rindlaub. Upon application of' appellant the sheriff issued a certificate of redemption to Sophia A. Signor from the sale of section 17 made to Clark on April 8, 1903.
This motion is based on numerous affidavits, in which there is no great conflict. Outside of the discrepancy in the affidavits of Messrs. Newman and Douglas, it may be said that the material facts are uncontradicted. Outside of the facts stated, there are others shown, which it is claimed have an important bearing upon the issue of law involved in the motion. It is claimed by appellant that the plaintiff, Mrs. Signor, on July 11th stated that she objected to the payment of the Clark judgment, but that she was advised by her attorney that she must do so, or she 'would lose her land. This is claimed to have been stated to the deputy sheriff. But, admitting it to be true, it has no evidentiary strength
The facts, therefore, make the case one of voluntary payment. The payment alone would not defeat the appeal, nor would a redemption from the sale. But the circumstances here show an intention to have the judgment completely extinguished and satisfied. The circumstances bring the case within the provisions of section 5739, Rev. Codes, providing that “an action is deemed to be pending from the time of its commencement until its final determination upon appeal or until the time for appeal has passed, unless the judgment is sooner satisfied.” The facts in this case go further than to make the payment compulsory, as simply a redemption, or as a payment made to save property from the effects of a levy of process. See Thornton v. Madison Woolen Mills, 41 Wis. 265. It is shown by the facts that the judgment was to be finally and unconditionally satisfied. This was a waiver of an appeal. If the appellant had rested with a redemption, a different question would be presented. In .that case the authorities cited by appellant would be in point as holding the payment as a redemption not to be a voluntary payment, and no bar to an appeal. It does not change the force of the circumstances attending the acceptance of the satisfaction and the prior negotiations of appellant’s attorney with Sarles and Rindlaub, or their agents, that appellant now says that there was no
From what has already been said, 'the case of State v. Albright, 11 N. D. 22, 88 N. W. 729, is clearly distinguished from the case at bar.
The motion to dismiss the appeal is granted.