Brown v. Norfolk Southern R. Co, 598.
| Decision Date | 18 September 1935 |
| Docket Number | No. 598.,598. |
| Citation | 181 S.E. 279,208 N. C. 423 |
| Court | North Carolina Supreme Court |
| Parties | BROWN et al. v. NORFOLK SOUTHERN R. CO. et al. |
Appeal from Superior Court, Moore County; Shaw, Emergency Judge.
Action by J. M. Brown and others against the Norfolk Southern Railroad Company, C. F. Garner, C. C. Fry, and another, wherein plaintiffs obtained judgment against defendants C. F. Garner and C. C. Fry. From a judgment dismissing defendants' motion to credit judgment with partial payment and to modify execution accordingly, defendants appeal.
Error.
Motion to credit judgment with partial payment and modify execution accordingly.
The plaintiffs instituted an action against D. B. Archbell, Norfolk Southern Railroad Company, C. F. Garner, and C. C. Fry, alleging an unlawful conspiracy in restraint of trade, C. S. § 2563, which action was nonsuited at the September term, 1929, Moore superior court, and reversed on appeal. Lewis v. Archbell, 199 N. C. 205, 154 S. E. 11.
Thereafter, on September 15, 1931, the plaintiffs came into court and suffered a voluntary nonsuit as to D. B. Archbell and Norfolk Southern Railroad Company, agreeing in open court not to sue said defendants "for any matter or thing growing out of or alleged in the complaint in this cause."
The cause then came on for trial against the defendants C. C. Fry and C. F. Garner at the September term, 1933, Moore superior court, and resulted in verdict and judgment for plaintiffs. The jury fixed the damages at $600, and judgment was rendered for treble this amount as provided by C. S. § 2574. On appeal, the judgment was affirmed. Lewis v. Frye, 207 N. C. 852, 175 S. E. 717.
The present motion was filed December 29, 1934, while execution was in the hands of the sheriff, and heard at the February term, 1935, Moore superior court. From judgment dismissing the motion, defendants appeal, assigning errors.
W. R. Clegg, J. H. Scott, and L. B. Clegg, all of Carthage, for appellants.
H. F. Seawell, Jr., of Carthage, for appellees.
STACY, Chief Justice (after stating the case).
His honor was evidently of the opinion that the failure to bring the matter to the attention of the court at the time of trial, as was done in Holland v. Southern Public Utilities Co., 208 N. C. 289, 180 S. E. 592, deprived movants of their right to have the judgment (not verdict) credited with the amount paid plaintiffs by their codefendants for the covenant not to sue. Homans v. Tyng, 56 App. Div. 383, 67 N. Y. S. 792. Ordinarily, this view might...
To continue reading
Request your trial
-
Simpson v. Plyler, 449
...annd may be maintained against the joint wrongdoers. Ramsey v. Camp, supra; Holland v. Utilities Co., supra; Brown v. Norfolk Southern R. R., 208 N. C. 423, 181 S.E. 279; Slade v. Sherrod, 175 N.C. 346, 95 S.E. 557. The fact that the covenant not to sue is given after the action is institut......
-
Syverson v. Heitmann
...v. New York Cent. R. Co. (1960) 145 W.Va. 676, 116 S.E.2d 697; Gillespie v. Brewer (Miss.1942) 10 So.2d 197; Brown v. Norfolk S.R. Co. (1935) 208 N.C. 423, 181 S.E. 279; New River & Pocahontas Consol. Coal Co. v. Eary (1934) 115 W.Va. 46, 174 S.E. 573; see Annot., Manner of Crediting One To......
-
Bennett v. Southern Ry. Co.
... ... Archbell, 199 N.C. 205, 154 S.E. 11. See ... Lewis v. Frye, 207 N.C. 852, 175 S.E. 717; Brown ... v. Norfolk Southern R. Co., 208 N.C. 423, 181 S.E. 279; ... Rice v. Asheville Ice Co., 204 ... ...
-
Ramsey v. Camp, 162
...joint tort-feasors are entitled to have the amount paid for the covenant not to sue credited on said judgment. Brown v. Norfolk Southern R., 208 N.C. 423, 181 S.E. 279; Holland v. Southern Public Utilities Co., 208 N.C. 289, 180 S.E. 592; Slade v. Sherrod, supra; Mason v. Stephens, 168 N.C.......