St. Vincent's Nursing Home v. Department of Labor

• Decision Date: 20 May 1969
• Docket Number: No. 8543,8543
• Citation: St. Vincent's Nursing Home v. Department of Labor, 168 N.W.2d 265 (N.D. 1969)
• Parties: In the Matter of the Classification of St. Vincent's Nursing Home. ST. VINCENT'S NURSING HOME, a Nonprofit Corporation, Plaintiff and Respondent, v. The DEPARTMENT OF LABOR of the State of North Dakota and Orville W. Hagen, Commissioner of Labor, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 265

168 N.W.2d 265

In the Matter of the Classification of St. Vincent's Nursing Home ST. VINCENT'S NURSING HOME, a Nonprofit Corporation Plaintiff and Respondent, v. The DEPARTMENT OF LABOR of the State of North Dakota and Orville W. Hagen, Commissioner of Labor Defendants and Appellants.

Civ. No. 8543.

Supreme Court of North Dakota.

May 20, 1969.

Syllabus by the Court

1. A party who voluntarily pays a judgment against him cannot appeal therefrom. However, payment of costs which are only incidental to the judgment and to not involve the merits of the action will not defeat the right to appeal.

2. For reasons stated in the opinion, the motion to dismiss the appeal is denied.

Rausch & Chapman, Bismarck, for plaintiff and respondent.

Helgi Johanneson, Atty. Gen., and Jack G. Marcil, Special Asst. Atty. Gen., Bismarck, for defendants and appellants.

STRUTZ, Judge.

This matter comes before us on motion by the plaintiff, St. Vincent's Nusing Home, to dismiss an appeal by the defendant Department of Labor of the State of North Dakota. The record discloses that the Department voluntarily paid costs taxed by the clerk of court in the sum of $43.50. After paying such costs, the Department took an appeal from the judgment, which judgment found St. Vincent's Nursing Home to be a hospital under the provisions of Section 34--12--01, North Dakota Century Code. The Home now moves that the appeal be dismissed on the ground that the Department, by paying the costs, has waived its right to appeal.

The only question presented on this motion is whether the Department, by voluntarily paying such costs, has waived its right to appeal. The Home strenuously asserts that such payment is a waiver of the right to appeal where the payment was voluntary and without any circumstances which would amount to coercion or error. It is conceded that there was no coercion in this case and that the payment made by the Department was voluntary.

This court has held that a party who voluntarily pays a judgment against him cannot appeal therefrom. Rolette County v. Pierce County, 8 N.D. 613, 80 N.W. 804 (1899); Grady v. Hansel, 57 N.D. 722, 223 N.W. 937 (1929).

However, where the payment is made under duress imposed by execution, such payment has been held not to be a waiver of the right to appeal. Grady v. Hansel, Supra.

This court has further held that where costs are only incidental to the judgment, the payment of the costs does not defeat the right to appeal. Johnson v. Barton, 134 N.W. 84 (N.D.1912). In Carroll v. Ryan, 79 N.D. 366, 56 N.W.2d 682 (1953), where the judgment was for dismissal of the plaintiff's cause of action and...