Hartsoe v. Southern R. Co.

• Decision Date: 14 December 1912
• Citation: 76 S.E. 684,161 N.C. 215
• Parties: HARTSOE et ux. v. SOUTHERN R. CO. et al.
• Court: North Carolina Supreme Court

76 S.E. 684

161 N.C. 215

HARTSOE et ux. v. SOUTHERN R. CO. et al.

Supreme Court of North Carolina

December 14, 1912

Appeal from Superior Court, Catawba County; Lyon, Judge.

Action by James Hartsoe and wife against the Southern Railroad Company and others. From a judgment for plaintiffs defendants appeal. Appeal dismissed.

Where an appeal was terminated by payment of the judgment, the Supreme Court will not consider questions involved in the appeal merely to determine the matter of appellant's costs.

S. J Ervin, of Morganton, for appellant Southern R. Co. A. A Whitener, of Hickory, for appellant City of Hickory.

PER CURIAM.

In this case the jury found for their verdict that the plaintiff was injured by the negligence of the defendant, and that the Southern Railroad Company was primarily liable, and that plaintiffs were entitled to recover $1,500 damages. The following judgment was rendered: "Ordered by consent of plaintiffs and Southern Railroad Company, and adjudged, that the plaintiffs recover of the defendant the Southern Railroad Company first and primarily the sum of $1,000 and costs of action, the amount of the recovery being by consent of the Southern Railroad Company and the plaintiffs reduced to said sum, and in the event of the failure of the plaintiffs to recover said sum out of the defendant the Southern Railroad Company, then the plaintiffs shall recover the said sum of $1,000 out of the defendant the city of Hickory, together with the costs of the action."

It is made to appear to the court, and is admitted, that the Southern Railroad Company subsequently paid the $1,000 to the plaintiff and took an assignment of the judgment to trustee for its benefit. The appeal of both the Southern Railroad and the city of Hickory must be dismissed. The judgment of record is a consent judgment and not merely to the reduction thereof to $1,000, which reduction would not require the assent of the Southern Railroad Company; but there is consent to the judgment itself. No appeal can be sustained from a consent judgment.

The appeal of that company being dismissed, there is no ground on which to entertain the appeal of the city of Hickory, which was improvidently taken. Besides, the court would not discuss the proposition involved in this appeal simply to determine the matter of costs of the appeal; the subject-matter thereof having been terminated by payment of the judgment. Herring v. Pugh, 125...