James H. Johnson v. James Bartron, Jr.

North Dakota Supreme Court

James H. Johnson v. James Bartron, Jr.

134 N.W.2d 84, 134 N.W. 84, 78 N.D. 1, 1912 N.D. LEXIS 2

CourtNorth Dakota Supreme Court

DecidedFebruary 16, 1912

DocketFile 2088

StatusPublished

Cited by4 cases

This text of 134 N.W.2d 84 (James H. Johnson v. James Bartron, Jr.) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

James H. Johnson v. James Bartron, Jr., 134 N.W.2d 84, 134 N.W. 84, 78 N.D. 1, 1912 N.D. LEXIS 2 (N.D. 1912).

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Opinion

Spalding, C. J.

The plaintiff brought an action against defendant for equitable relief. Judgment was rendered in the defendant’s favor, and costs of $9.20 taxed against the plaintiff and entered in the judgment. Prom the judgment plaintiff appealed to this court. Subsequently he negotiated a sale of a lot in Wilton. The purchaser, finding the judgment of $9.20 for costs a lien on the lot, declined to consummate the purchase unless such judgment .was paid, whereupon appellant paid the same by check and it was satisfied in the office of the clerk of the district court. The respondent now moves this court to dismiss the appeal, claiming that the satisfaction of the judgment leaves nothing to sustain the appeal. In this we think respondent is in error. The costs were only an incident of the judgment, and they were paid under circumstances occasioned by the refusal of the purchaser to take the lot and consummate his purchase unless such lot was relieved of the lien of the judgment for costs. It left standing the main judgment against the appellant. It would be extremely unjust when appellant is forced by stress of circumstances to pay the costs taxed against him in a suit in equity to deprive him thereby of his right to a review of the judgment, or that part of it from which the appeal is taken. Numerous authorities are found in point, some to the effect that where a judgment is in two parts, one of which is satisfied, it does not defeat the right to appeal from the unsatisfied portion; others to the effect that where the appellant is compelled, in order to perfect a sale of his property, to pay the costs, doing so does not estop him from maintaining his appeal. We prefer to place our decision upon the latter ground, and, therefore, deny the application. Lumaghi v. Abt (Mo) 103 SW 104; Joannin et al. v. Ogilvie, 49 Minn 564; Peyser v. Mayor, 70 NY 497; Cassell v. Pagin, 11 Mo 207; Hatch v. Jacobson, 94 Ill *3 584; Springer v. Merchants Nat. Bank, 67 Ill App 317; Woodward et al. v. State, 58 Neb 598; Territory v. Cooper et al., 11 Okla 699; 2 Enc Pleading and Practice, 181.

Fisk, Bruce, Gloss and Burke, JJ., concur.

(This case is reported as Johnson v. Barton, 134 NW at page 84.)

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Spalding, C. J.

The plaintiff brought an action against defendant for equitable relief. Judgment was rendered in the defendant’s favor, and costs of $9.20 taxed against the plaintiff and entered in the judgment. Prom the judgment plaintiff appealed to this court. Subsequently he negotiated a sale of a lot in Wilton. The purchaser, finding the judgment of $9.20 for costs a lien on the lot, declined to consummate the purchase unless such judgment .was paid, whereupon appellant paid the same by check and it was satisfied in the office of the clerk of the district court. The respondent now moves this court to dismiss the appeal, claiming that the satisfaction of the judgment leaves nothing to sustain the appeal. In this we think respondent is in error. The costs were only an incident of the judgment, and they were paid under circumstances occasioned by the refusal of the purchaser to take the lot and consummate his purchase unless such lot was relieved of the lien of the judgment for costs. It left standing the main judgment against the appellant. It would be extremely unjust when appellant is forced by stress of circumstances to pay the costs taxed against him in a suit in equity to deprive him thereby of his right to a review of the judgment, or that part of it from which the appeal is taken. Numerous authorities are found in point, some to the effect that where a judgment is in two parts, one of which is satisfied, it does not defeat the right to appeal from the unsatisfied portion; others to the effect that where the appellant is compelled, in order to perfect a sale of his property, to pay the costs, doing so does not estop him from maintaining his appeal. We prefer to place our decision upon the latter ground, and, therefore, deny the application. Lumaghi v. Abt (Mo) 103 SW 104; Joannin et al. v. Ogilvie, 49 Minn 564; Peyser v. Mayor, 70 NY 497; Cassell v. Pagin, 11 Mo 207; Hatch v. Jacobson, 94 Ill *3 584; Springer v. Merchants Nat. Bank, 67 Ill App 317; Woodward et al. v. State, 58 Neb 598; Territory v. Cooper et al., 11 Okla 699; 2 Enc Pleading and Practice, 181.

Fisk, Bruce, Gloss and Burke, JJ., concur.

(This case is reported as Johnson v. Barton, 134 NW at page 84.)

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134 N.W.2d 84, 134 N.W. 84, 78 N.D. 1, 1912 N.D. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-h-johnson-v-james-bartron-jr-nd-1912.

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