Grady v. Hansel

CourtUnited States State Supreme Court of North Dakota
Citation57 N.D. 722,223 N.W. 937
Decision Date04 March 1929
Docket NumberNo. 5587.,5587.
Syllabus by the Court.

The voluntary payment of a judgment by the judgment debtor waives the right of appeal therefrom, but, where the payment is made under coercion or duress, there is no waiver.

One who moves to dismiss an appeal, on the ground that the judgment from which the appeal was taken has been paid, has the burden of showing that the payment was voluntary. Held, for reasons stated in the opinion, that it does not appear in the instant case that the judgment from which the appeal was taken was voluntarily paid.

Appeal from District Court, Hettinger County; H. L. Berry, Judge.

Action by John P. Grady against J. O. Hansel, wherein the Western Lumber & Grain Company was made garnishee. From a judgment dismissing an appeal from justice court, defendant and the garnishee appeal. Reversed.Jacobsen & Murray, of Mott, for appellants.

J. W. Sturgeon, of Dickinson, for respondent.


This appeal is from a judgment of the district court of Hettinger county, dismissing an appeal from a justice court. The record discloses the following facts: The garnishee is engaged in the grain business. It had an elevator at Havelock. In October, 1927, plaintiff sued the defendant in justice court, and garnisheed the appellant. Plaintiff took judgment against the defendant by default on October 28th. The garnishment summons was returnable on November 2d. It was served on the appellant on October 24th. The appellant's agent at Havelock, immediately after service of the summons upon him, wrote the justice issuing the same as follows.

R. N. Blank, Justice of the Peace, New England, N. D. This is to certify that this Comp holds in storage 242.14 bu of nett Flax belonging to J. O. Hansel, for which our storage ticket #2322 is issued, which will be held according to the Notice of Garnishment received, until relized from Justice Court. Yours truly, Peter Lux, Mgr. of Western Lumber & Grain Co., Havelock, N. D.”

On the return day in the garnishment matter no appearance was made by the appellant. The defendant appeared and filed an answer claiming his exemptions. In his schedule, however, he did not list any flax as held in the hands of the appellant. His claim of exemptions as made was allowed by the justice court. The justice apparently considered the letter written by Lux as an admission of liability on the part of the garnishee, and entered judgment against it for the amount of the plaintiff's claim and costs. On November 18 an execution was issued against the appellant, and placed in the hands of the sheriff. The sheriff thereafter made his return as follows: “I hereby certify that by virtue of the within execution, on the 18th day of November, 1927, I have collected from the Western Lumber & Grain Co., the garnishee herein, the sum of $206.40 the amount of the within judgment and accruing costs and have turned the same over to Robt. M Blank, Justice of the Peace.”

On December 2d, the thirtieth day after the garnishment summons was returnable, the defendant and appellant perfected an appeal to the district court. The appellant at that time filed its affidavit denying any liability, except on account of a certain storage ticket representing 74 bushels of wheat issued to the order of the defendant, J. O. Hansel. This affidavit was made by one Sattler as the superintendent of the appellant. When the case was called for trial in the district court, the plaintiff moved to dismiss the...

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11 cases
  • Hatten Realty Co. v. Baylies, 1618
    • United States
    • United States State Supreme Court of Wyoming
    • July 30, 1930
    ......Mountain States. Supply Co., (Utah) 188 P. 1117; Hurt, et al. v. Bauer, (Cal.) 173 P. 601; Hipp v. Grenshaw,. (Iowa) 20 N.W. 492; Grady v. Hansel, (N. D.) . 223 N.W. 937; Tong v. Miller, (Mich.) 204 N.W. 108;. Poffinborger v. Sumner, (Ind.) 117 N.E. 646. A. broker is not ......
  • Lyon v. Ford Motor Co., 990125.
    • United States
    • United States State Supreme Court of North Dakota
    • January 19, 2000
    ...v. Henlein, 72 N.D. 63, 66, 4 N.W.2d 587, 588-89 (1942); In re McKee's Estate, 69 N.D. 203, 208, 285 N.W. 72, 74 (1939); Grady v. Hansel, 57 N.D. 722, 725, 223 N.W. 937 (1929); Signor v. Clark, 13 N.D. 35, 45-46, 99 N.W. 68, 71-72 (1904); Rolette County v. Pierce County, 8 N.D. 613, 615, 80......
  • Metropolitan Development and Housing Agency v. Hill
    • United States
    • Court of Appeals of Tennessee
    • July 26, 1974
    ...115 S.E. p. 163 On remand, a jury found the payment to be voluntary and the appeal was dismissed. Said text also cites Grady v. Hansel, 57 N.D. 722, 223 N.W. 937 (1928), wherein the North Dakota Supreme Court refused to dismiss an appeal because payment was made to a sheriff armed with an e......
  • Ramsey Financial Corp. v. Haugland, 20050375.
    • United States
    • United States State Supreme Court of North Dakota
    • July 26, 2006
    ...execution of a satisfaction of judgment is not a prerequisite for this principle to apply. See, e.g., McKee's Estate; Grady v. Hansel, 57 N.D. 722, 725, 223 N.W. 937 [¶ 10] While voluntary payment of or acquiescence in a judgment waives the right to appeal, payment or acquiescence under coe......
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