#### COWELL v. GREGORY.

(Filed March 18, 1902.)

APPEAL — Waiver—Payment of Judgment — The Code, Sec. 886— Justice of the Peace.

A defendant by voluntarily paying a judgment taken against liim before a justice of the peace waives his right of appeal.

Douglas, J., dissenting.

AotioN by W. J. Cowell against N. P. Gregory, beard by Judge George H. Brown, at September Term, 1901, of the Superior Court of Camben- County. Prom a judgment for the plaintiff, the defendant appealed.

G. W. Ward, for the plaintiff.

E. F. Aydlett, and P. H. Williams, for the defendant.

Montgomery, J.

At the time of the rendition of the judgment in the Justice’s Court, the defendant refused to appeal, and paid the judgment voluntarily to the constable and the recovery to the plaintiff in the action. Within the time allowed by law for appeals, the defendant filed the proper notice of appeal to the Superior Court, and the appeal was sent forward. On the call of the case in the Superior Court, the plaintiff lodged a motion to dismiss the appeal, upon the ground that the defendant had ivaived and renounced his right to appeal, and had voluntarily paid the judgment.

.The following were the facts as found by the Court: “The Justice of the Pea.ce heard the cause and rendered judgment upon all the issues for plaintiff, in the sum of $32.63; that at the time, and within an hour after judgment rendered and announced, and in presence of the Justice, one Cartwright said to defendant, Why don’t you appeal,’ - and defendant *81announced to> the Justice that he did not wish to appeal, that he wished to pay the debt and get rid of it, and asked for the bill of costs; no execution was issued, and no request or demand made on the plaintiff to pay the judgment; that then and there the defendant paid the judgment and costs into the hands of the constable for the plaintiff, and the Justice satisfied and discharged the judgment at the request of the defendant.

His Honor dismissed the appeal, and upon his holding the defendant appealed to this Court. There was no error in-the proceeding below.

The plaintiff cited the eases of Suttle v. Green, 78 N. C., 76, and State v. Chastain, 104 N. C., 900, but they have no application here. In those cases there were notices of appeal, a withdrawal of the same, and then renewals of the appeal. There was no payment or discharge in whole or in part of the judgment, voluntary or involuntary. In the present case, the judgment was not only paid, but the defendant expressed his purpose and desire to “pay the debt and get rid of it.” The judgment had thereafter no existence for any purpose. 2 Cyc. Law and Pro., 647, 648.

Section 886 of The Code, from the view we have taken of the case, has reference only to cases where payments have been made involuntarily; as a payment made of a judgment to prevent execution from being issued with the attendant additional charges, costs and inconveniences.

No Error.

Douglas, J.,

dissenting.

I can not concur in the opinion of the Court, because, in my opinion, it is directly opposed to the provisions of The Code, as well as to the great weight of authority. But a single authority is cited by the Court as the basis of its opinion, and that is found, upon examination, to be directly to the contrary. In 2 Cyc. Law and Pro., 647, it is said “That voluntary payment or perform-*82anee of a judgment is generally Held'to be no bar to an appeal or writ of error for its reversal, unless such payment was made by way of compromise and agreement to settle tbe controversy, or unless tbe payment or performance of tbe judgment was under peculiar circumstances wbicb amounted to a confession of its correctness.”

There is no pretense tbat tbe defendant in any way confessed tbe correctness of tbe judgment, or tbat tbe money was paid by way of compromise.

It is true, 2 Cyc. Law and Pro., 648, further says: “There are, however, Courts wbicb bold tbat such voluntary payment is a waiver of defendant’s right of appeal,” but tbe test of tbe work is against tbe position of tbe Court. I do not doubt tbat precedents can be found for almost any side of a question among tbe forty-five States of tbe Union, especially on questions of practice, wbicb is largely governed by local statutes. Tbe fact tbat only three States and one Territory bold tbat a voluntary payment is a waiver of the right of appeal, might well lead us to conclude tbat tbe weight of authority is to. the contrary.

Tbe rule is well stated in 2 Enc. Pl. and Prac., 181: “Payment .of a collectible judgment rendered by a Court of competent jurisdiction is involuntary, and does not bar tbe appeal of tbe unsuccessful party below.”

It is well known.tbat our Code practice, although greatly changed, was originally modeled after tbat of New York, wbicb bolds, with tbe vast majority of States, tbat tbe payment of a collectible judgment is not voluntary in a legal sense. In Peyser v. New York, 70 N. Y., 497, 26 Am. Rep., 624, tbe principle is thus clearly stated: “Coercion by law is where a Court, having jurisdiction of tbe persons and tbe subject-matter, has rendered a judgment wbicb is collectible in due course. There, tbe party cast in judgment may not resist tbe execution of it. His only remedy is. to obtain a *83reversal, if be may, for error in it. As be can not resist tbe execution of it, wben execution'is attempted, be may as well pay tbe amount at one time as at another, and save tbe expense of delay.” Tbe Court says tbat tbe cases of Suttle v. Green, 78 N. C., 76, and State v. Chastain, 104 N. C., 900, have no application to tbe case at bar. I must respectfully differ from tbe Court. In my opinion, they apply by direct analogy. I do not suppose it will be contended, in tbe face of Section 886 of Tbe Code, tbat a mere payment of tbe judgment would liave affected tbe defendant’s right of appeal, bad it not been for bis casual expression tbat be wanted to “pay the debt and get rid of it.” What peculiar legal effect have these words beyond any others expressing a purpose not to appeal ? None tbat I know. They are certainly no stronger than tbe actual withdrawal of an appeal already taken.

In Suttle v. Green, supra, this Court says: “On tbe trial before tbe Justice, tbe defendant denied that he owed the plaintiff anything. And wben tbe Justice gave judgment against him, be appealed in open Court. This was all tbat be was obliged td do. It then became tbe duty of tbe Justice, upon bis fees being paid, to send tbe papers to tbe Clerk of tbe Court. As an excuse for not sending up tbe papers, tbe Justice said' tbat tbe defendant told him not to do it. Concede tbat this was a sufficient excuse for delay on tbe part of the Justice, still it did not estop tbe defendant. He bad locus penitentiae, and be did change bis mind and filed with tbe Clerk a good bond to cover tbe plaintiff’s claim and costs.”

In State v. Chastain, supra, this Court says, on page 905: “E. H. Chastain first withdrew and then renewed and perfected bis appeal. He bad a right to renew and reinstate it within tbe time prescribed by law, if be bad no other object to attain but to delay tbe execution of bis sentence.”

These authorities might well be deemed conclusive; but let us examine tbe provisions of Tbe Code regulating appeals *84from a Justice of the Peace. Section 875 is as follows: “The party against whom judgment was rendered in any civil action in a Justice’s Court, may appeal to the Superior Court from the same; but no appeal shall prevent the issuing of an execution on such judgment or work a stay thereof, except as herein provided.” Section 882 provides that execution may be stayed upon giving the proper bond. Section 876 provides that “the appellant shall, within ten days after judgment, serve a notice of appeal, stating the grounds upon which the appeal is founded.” * * * This term of ten days is clearly the locus peMlentitie referred to in Suttle’s case, within which the defendant may “change his mind.” He did change his mind, and perfected his appeal strictly according to law. As intimated in Chastain’s case, it made no difference what caused him to change his mind, if he exercised his right of appeal within the ten days allowed by the statute. This time is evidently given to enable the defendant to carefully consider the matter, and, if necessary, obtain legal advice. However, in the meantime execution may be taken out by the plaintiff, regardless of any right of appeal. It may be that the defendant is unable to give bond. If so, why should he wait for the issuing of an execution, with all its extra costs. It is true, he may recover what he has paid, but then again he may not, as the perils of litigation are almost equal to those of the sea, without the benefit of marine insurance. Section 886 of The Code provides that “if the judgment appealed from, or any part thereof, be paid or collected, and the judgment be afterwards reversed, the appellate Court shall order the amount paid or collected to be restored, with interest from the time of such payment or collection.” The disjunctive use of the words “paid or collected,” clearly shows that the statute intended to give to the defendant the privilege of paying before execution, without in any way interfering with his right of appeal.

*85It should be remembered that the right of appeal is expressly guaranteed by the Constitution, Article IV, section 27, and should not lightly be set aside by implication or presumption. Indeed, so sacred is it regarded, that parties can not waive their right of appeal before trial, even by express agreement. Falkner v. Hunt, 68 N. C., 475; Runnion v. Ramsay, 93 N. C., 410. With all respect for the Court and submission to its decision, I can not concur in an opinion, which, in my deliberate judgment, flies in the face of authority and the teeth of the statute.