Grady v. Hansel

• Decision Date: 04 March 1929
• Docket Number: No. 5587.,5587.
• Citation: 57 N.D. 722,223 N.W. 937
• Court: North Dakota Supreme Court
• Parties: GRADY v. HANSEL (WESTERN LUMBER & GRAIN CO., Garnishee).

57 N.D. 722

223 N.W. 937

GRADY

v.HANSEL (WESTERN LUMBER & GRAIN CO., Garnishee).

No. 5587.

Supreme Court of North Dakota.

March 4, 1929.

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.

NUESSLE, J.

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...