Brown v. Norfolk Southern Railroad

181 S.E. 279, 208 N.C. 423, 1935 N.C. LEXIS 435

• Court: Supreme Court of North Carolina
• Decided: September 18, 1935
• Status: Published

Opinion

Stagy, C. J.,

after stating tbe case: His Honor was evidently of tbe opinion tbat tbe failure to bring tbe matter to tbe attention of tbe court at tbe time of trial, as was done in Holland v. Utilities Co., ante, 289, deprived movants of tbeir right to bave tbe judgment (not verdict) credited witb tbe amount paid plaintiffs by tbeir codefendants for tbe covenant not to sue. Homans v. Tyng, 67 N. Y. Supp., 792. Ordi--narily, tbis view might prevail (lex reprobat moram, Battle v. Mercer, 188 N. C., 116, 123 S. E., 258) but for tbe fact tbat tbe matter appears on tbe face of a judgment entered in tbe cause.

It is provided by C. S., 620, tbat payments made upon docketed judgments and not entered of record, may be credited upon motion and bearing. True, tbe amount received by plaintiffs for tbe covenant not to sue some of tbe defendants was not strictly within tbe terms of tbis statute, nevertheless it would seem to be within its spirit. Tbe payment inured to tbe benefit of movants. Holland v. Utilities Co., supra, It was said in Homans v. Tyng, supra, tbat where a party entitled to enforce a judgment, on which execution has issued, consents to an amendment of tbe judgment, reducing tbe amount of recovery, tbe proper procedure is not to vacate tbe execution but reduce it in accordance witb tbe agreement.

Tbat movants are not entirely out by tbeir laches — tbe execution being still in tbe bands of tbe sheriff — is supported, in tendency at least, by what was said, and tbe authorities cited, in Williams v. Dunn, 158 N. C., 399, 74 S. E., 99.

Error.