Workman v. Salzer Lumber Company, a Corp.

• Decision Date: 25 July 1924
• Citation: 199 N.W. 769,51 N.D. 280
• Court: North Dakota Supreme Court

199 N.W. 769

51 N.D. 280

HOSMER WORKMAN, Respondent, v. SALZER LUMBER COMPANY, a Corporation, Appellant

Supreme Court of North Dakota

July 25, 1924

Appeal from the District Court of Stutsman County, Coffey, J Reversed.

Judgment reversed and action dismissed.

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

M. C Freerks, for respondent.

BIRDZELL J. JOHNSON, CHRISTIANSON, and NUESSLE, JJ., concur. BRONSON, Ch. J., concurs in result.

OPINION

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, North Dakota, 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 3, 1923. According to the sheriff's report of sale, this delay was occasioned by the request of the judgment debtor to withhold publication of the notice of sale to enable him to make payment of the amount due under the judgment and save himself the expense of sale. Just prior to this latter date, the plaintiff demanded of W. C. Wescom, the agent of the defendant at Edmunds, the return of the separator, which demand was refused. Immediately thereafter this action was started. The sheriff nevertheless sold the separator, under the special execution, to the defendant who, according to the sheriff's report of sale, bid therefor $ 75. The trial court in this action ruled that the commands of the special execution had not been properly executed and that the sale thereunder conferred no title upon the purchaser and, in pursuance of this ruling, instructed the jury to return a verdict for the plaintiff for the return of the property, leaving as the sole question for their determination the value, which they found to be $ 750.

The respondent moves to dismiss the appeal upon the ground that the judgment had been voluntarily satisfied by the defendant to the extent of allowing the plaintiff to take possession of the property under the judgment awarding him such possession. We are of the opinion that this motion should be denied. There are no circumstances shown which, in our opinion, would warrant the conclusion that the defendant, by permitting the plaintiff to take possession of the property, intended to waive the errors, if any, appearing in the judgment under which the plaintiff asserted his right of possession. The suit was in no sense compromised. Neither has the defendant received any benefit under the judgment which would preclude him from appealing. Tyler v. Shea, 4 N.D. 377, 50 Am. St. Rep. 660, 61 N.W. 468. Our statute (Comp. Laws 1913, § 7826), by permitting appeals without the obtaining of a stay, recognizes the right of one to have a judgment reviewed in this court, though such judgment may have been satisfied pending the appeal. If, therefore, the defendant, by satisfying the judgment in question, is precluded from prosecuting his appeal, he is precluded merely because he has voluntarily done that which he might have been compelled to do without losing his right of appeal. We know of no substantial reason why voluntary acquiescence in a judgment should prevent one from having the judgment reviewed, while yielding to the legal processes for the enforcement of a judgment would not have such an effect. In 2 R. C. L. 65, this matter is discussed as follows:

"As a general rule, however, one against whom a judgment or decree for a sum of money has been rendered does not, by voluntarily paying or satisfying it, waive or lose his right to review it upon a writ of error or appeal unless such payment or satisfaction was by way of compromise or with an agreement not to pursue an appeal or writ of error. This rule has been placed upon the ground that one against whom a judgment is entered, if he fails to satisfy it, must expect to see his property seized and sold at a sacrifice, and it is difficult to conceive how his payment of the judgment can give rise to any estoppel against seeking to avoid it for error. The better view accordingly is, that though the execution has not issued the payment of a judgment must be regarded as compulsory, and therefore as not releasing errors, nor depriving the payor of the right to appeal."

See Warner Bros. Co. v. Freud, 131 Cal. 639, 82 Am. St. Rep. 400, 63 P. 1017; Freeman, Judgm. § 480a.

The appellant presents the main issue upon appeal as follows "When there has been a valid levy and seizure of personal property under a special execution before the return day, and the sheriff does not make his return thereon within sixty days after the receipt of the writ by him, does the delay of the sheriff in making his return completely destroy his right of possession under the levy and seizure, so...