Wachovia Bank & Trust Co. v. Miller

Supreme Court of North Carolina

Wachovia Bank & Trust Co. v. Miller

133 S.E. 97, 191 N.C. 787, 1926 N.C. LEXIS 178

CourtSupreme Court of North Carolina

DecidedMay 19, 1926

StatusPublished

Cited by4 cases

This text of 133 S.E. 97 (Wachovia Bank & Trust Co. v. Miller) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wachovia Bank & Trust Co. v. Miller, 133 S.E. 97, 191 N.C. 787, 1926 N.C. LEXIS 178 (N.C. 1926).

Pincite

Opinion

Brogden, J.

The only question in the case is whether or not the payment of a judgment, pending an appeal, produces an abandonment of the appeal.

This question was under consideration in this same case reported in 184 N. C., 593.

The opinion of the Court, by Walker, J., states the proposition thus: “The question raised by the defendant’s answer or affidavit may be submitted to a jury, if the plaintiff takes issue with the defendant upon it, or the question thus raised may be otherwise determined by a finding of the court or a referee as the parties may agree or the court may decide. As the plaintiff alleges that the defendant had abandoned his appeal by the payment of the amount of the judgment, the burden necessarily is on him to show it. The mere payment of the money is not of itself sufficient under the facts and circumstances of this case, so far, at least, as developed, to show the abandonment.”

In other words, the decision was to the effect that the intention to abandon the appeal by reason of the payment of the judgment, under the circumstances, was a question for the jury and not a question of law for the court. In the present case and in conformity with the former opinion, the trial judge submitted this issue: “Was the payment by the defendant of the judgment intended as an abandonment of his *789 appeal at tbe time of sucb payment?” Tbe jury answered, tbe issue, “Yes.” Tbe trial judge charged tbe jury as follows: “Tbe court charges you that tbe burden of proof is upon tbe plaintiff to satisfy you by the greater weight of tbe evidence that tbe payment was a voluntary one, and tbe defendant intended to abandon bis appeal.” Tbe contentions of tbe parties were arrayed fairly and tbe law correctly applied to tbe facts. Tbe judgment rendered must be upheld.

Although we have examined tbe case and find no reversible error, yet tbe appeal must be dismissed. This is a pauper appeal, and Rule 22 of tbe Supreme Court requires tbe appellant to file seven typewritten copies of bis brief and seven typewritten copies of tbe transcript in addition to tbe original transcript. Tbe appellant has filed only three copies of tbe transcript. These rules are mandatory and must be complied with.

Appeal dismissed.

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Brogden, J.

The only question in the case is whether or not the payment of a judgment, pending an appeal, produces an abandonment of the appeal.

This question was under consideration in this same case reported in 184 N. C., 593.

The opinion of the Court, by Walker, J., states the proposition thus: “The question raised by the defendant’s answer or affidavit may be submitted to a jury, if the plaintiff takes issue with the defendant upon it, or the question thus raised may be otherwise determined by a finding of the court or a referee as the parties may agree or the court may decide. As the plaintiff alleges that the defendant had abandoned his appeal by the payment of the amount of the judgment, the burden necessarily is on him to show it. The mere payment of the money is not of itself sufficient under the facts and circumstances of this case, so far, at least, as developed, to show the abandonment.”

In other words, the decision was to the effect that the intention to abandon the appeal by reason of the payment of the judgment, under the circumstances, was a question for the jury and not a question of law for the court. In the present case and in conformity with the former opinion, the trial judge submitted this issue: “Was the payment by the defendant of the judgment intended as an abandonment of his *789 appeal at tbe time of sucb payment?” Tbe jury answered, tbe issue, “Yes.” Tbe trial judge charged tbe jury as follows: “Tbe court charges you that tbe burden of proof is upon tbe plaintiff to satisfy you by the greater weight of tbe evidence that tbe payment was a voluntary one, and tbe defendant intended to abandon bis appeal.” Tbe contentions of tbe parties were arrayed fairly and tbe law correctly applied to tbe facts. Tbe judgment rendered must be upheld.

Although we have examined tbe case and find no reversible error, yet tbe appeal must be dismissed. This is a pauper appeal, and Rule 22 of tbe Supreme Court requires tbe appellant to file seven typewritten copies of bis brief and seven typewritten copies of tbe transcript in addition to tbe original transcript. Tbe appellant has filed only three copies of tbe transcript. These rules are mandatory and must be complied with.

Appeal dismissed.

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Bluebook (online)

133 S.E. 97, 191 N.C. 787, 1926 N.C. LEXIS 178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wachovia-bank-trust-co-v-miller-nc-1926.

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