Workman v. Salzer Lumber Co.

• Citation: 199 N.W. 769,51 N.D. 280
• Parties: WORKMAN v. SALZER LUMBER CO.
• Decision Date: 25 July 1924
• Court: United States State Supreme Court of North Dakota

51 N.D. 280
199 N.W. 769

WORKMAN
v.
SALZER LUMBER CO.

Supreme Court of North Dakota.

July 25, 1924.

Syllabus by the Court.

Voluntary satisfaction or partial satisfaction of a judgment does not necessarily amount to a waiver of the right of appeal.

In an action to foreclose a chattel mortgage, the jurisdiction of the court to render a judgment is not conditioned upon the plaintiff's taking possession of the property under a warrant of seizure, under section 8138, C. L. 1913.

Where the judgment in a foreclosure action forecloses the defendant's equity of redemption in specific property and provides for the issuance of a special execution directing the sheriff to take the property and sell it, the judgment is one which is enforceable, under the terms of section 7714, C. L. 1913, by a writ reciting the material parts of the judgment, and in such case the provision in the execution for its return within 60 days and in the statute, section 7719, C. L. 1913, requiring executions to be returned within 60 days, is directory.

Appeal from District Court, Stutsman County; J. A. Coffey, Judge.

Action by Hosmer Workman against the Salzer Lumber Company. From a judgment for plaintiff, defendant appeals. Judgment reversed, and action dismissed.

[199 N.W. 769]

Burfening & Conmy, of Fargo, Knauf & Knauf, of Jamestown, and Sathre, Muir & Garberg, of Fargo, for appellant.

M. C. Freerks, of Jamestown, for respondent.

BIRDZELL, J.

This is an appeal from a judgment awarding to the plaintiff a return to him of a separator, or in the alternative, in case return could not be had, the recovery of $750, the value of the property as determined by the verdict of the jury and for costs. Immediately after the rendition of the judgment in the district court, the plaintiff, by exhibiting to an agent of the defendant a copy of the judgment, secured a return of the property. Thereafter, a satisfaction of the judgment, except for costs, was filed.

The facts essential to an understanding of the questions presented upon appeal are as follows: In July, 1920, the defendant, the Salzer Lumber Company, sold to the plaintiff, Workman, a Nichols & Shepherd separator, taking in payment workman's note for $630 secured by a chattel mortgage on the separator and the attachments. Default having been made in the payment of the note, the company started an action to foreclose the chattel mortgage, but did not seize the property. In this action Workman defaulted, and judgment was entered against him for the amount due on the note. The judgment further provided that the equity of redemption in the mortgaged property be foreclosed, and awarded a special execution directing the sheriff to take it into his possession and sell it, applying the proceeds to the payment of costs and expenses of sale, and next to the payment of the judgment. Upon the entry of the judgment, a special execution was issued and placed in the hands of the sheriff, who took the separator in his possession on or about November 26, 1922. The sheriff hauled the separator to Edmunds, N. D., and placed it in the lumber yard of the judgment creditor, the defendant in this action. On January 5th following, the sheriff was succeeded in office by another. Publication of the notice of the sale was withheld, both by the sheriff who made the levy and his successor, until April...