#### WACHOVIA BANK AND TRUST COMPANY, as Executor of GWYN EDWARDS, Deceased, v. WILLIE LEE MILLER.

(Filed 13 December, 1922.)

1. Appeal and Error — Appeal—Amendments—Execution—Supersedeas— Bond — Judgment—Payment.

A judgment debtor may stay execution pending appeal by giving tbe bond required by our statute, or be may pay tbe debt and preserve bis right to prosecute bis appeal according to tbe course and practice of tbe court, witb order for restitution should be succeed therein, unless such payment was made by way of compromise and agreement to settle tbe controversy, or, under peculiar circumstances, which amounted to a confession of tbe correctness of tbe judgment. C. S., 1534, and a withdrawal of tbe appeal.

*5942. Same — Evidence—Trials—Questions lor Jury — Reference.

Where the appeal of the judgment debtor from a judgment of a justice of the peace is properly in the Superior Court, and it is made to appear in the latter court that the judgment had been paid since its rendition by the justice, and there is evidence in the defendant’s behalf that he had paid it under duress on compulsion, and without any intention on his part to abandon the right of appeal that, instead, he had preserved, it was error for the Superior Court judge to regard this evidence as irrelevant and dismiss the appeal, said evidence, if denied, raising an issue of fact to be determined by the jury, or a finding by the court or referee, as the parties may agree, or the court may decide in proper instances. C. S., 1534.

S. Appeal and Error — Appeal — Motions — Judgment—Abandonment-Evidence — Burden of Proof.

Where; in the Superior Court, the plaintiff moves to dismiss the axipeal of his debtor from a judgment rendered against him in the court of a justice of the peace on the ground that the appeal had been abandoned by the payment of the judgment, the burden is on him to show such acts or conduct as would amount to the abandonment he has alleged in his motion. . C. S., 1534, the giving of a stay bond, or even the payment of the judgment, not, of itself, being sufficient to show an abandonment.'

4. Pleadings — Appeal and Error — Appeal—Motions—Permission to Pile Answer.

Held,, under the facts of this case the answer or affidavit of the defendant was in the nature of an answer to the plaintiff’s motion, in the Superior Court, to dismiss the defendant’s appeal from a judgment of a justice of the peace; and where the judge has erroneously dismissed the case on plaintiff’s' motion, on the ground that defendant’s payment effected an abandonment by him of his right, plaintiff’s contention, on appeal, that the court had not given its permission for the defendant to file the answer is without merit.

Appeal by defendant from Lane, J., at August Term, 1922, of ^BUNCOMBE.

This action was begun before a justice of the peace by the plaintiff’s testator, Gwyn Edwards, and was originally entitled Gwyn Edwards v. Willie Lee Miller. Edwards died, and the bank above named, as his executor, became a party plaintiff. Edwards secured judgment on 21 June, 1920, against Miller for $85, with interest on that sum from 21 June, 1918, with costs. Miller duly appealed to the Superior Court, in which court his appeal was docketed 29 June, 1920. On 25 June, 1920, Edwards paid the judgment, under the circumstances stated in the uncontradicted affidavit filed by Miller.

On 23 May, 1921, the defendant filed what purports to be an answer, which is as follows:

“The defendant ~W. L. Miller answering, says:

“1. That the defendant, at the time the suit was brought against him by the plaintiff (meaning the action before the justice of the peace), did not owe the plaintiff, in respect of the subject-matter of said suit, more *595than $12.50, wbicb amount be offered to pay tbe plaintiff prior -to tbe beginning of said suit, but tbe defendant refused to accept tbe same.

“2. Tbat at tbe timé of bringing tbe suit and tbe rendering of judgment therein, tbe plaintiff bad a claim against tbe defendant based on certain notes, dated 20 September, 1916, secured by deed of trust of same date registered in Buncombe County, wbicb was a lien on defendant’s real estate, and wbicb contained a power of sale, wbicb tbe plaintiff Edwards was tben about to enforce for tbe nonpayment of tbe debt secured by tbe said deed of trust. Tbat tbe plaintiff Edwards used tbe said notes and deed of trust, and tbe power wbicb they gave bim over tbe defendant, unlawfully to extort from tbe defendant Miller tbe payment of tbe said sum of $100, $85 of wbicb was in payment of tbe judgment aforesaid, rendered herein on 21 June, 1920, by Dermid, justice of tbe peace, and $15 to said plaintiff’s attorney, wbicb said $100 tbe defendant was wrongfully and by duress forced by tbe plaintiff to pay in order to procure from tbe plaintiff tbe notes and deed of trust, so tbat be might have tbe same canceled of record, and tbe $100, so wrongfully extorted from bim as aforesaid, was by tbe defendant Miller paid to the plaintiff Edwards on 25 June, 1920. Tbe judgment against tbe defendant in favor of tbe plaintiff was rendered by tbe justice on 21 June, 1920, and defendant appealed therefrom.

“Wherefore, this defendant prays tbat be have judgment against said Edwards for tbe restoration of tbe said $100, with interest thereon from 24 June, 1920; also for such damages as tbe jury may consider bim entitled to, and for such other relief as be may be entitled to in tbat behalf.”

(Duly certified.)

Tbe answer was offered as an affidavit, upon plaintiff’s motion to dismiss tbe appeal, but tbe presiding judge refused to bear or to consider it, or, at tbe request of tbe defendant’s counsel, to find any facts stated therein, and tben refused all relief to tbe defendant, giving as tbe sole reason for bis refusal tbat tbe matters stated in tbe answer and affidavit were irrelevant, and for tbe same reason be dismissed tbe defendant’s appeal from tbe justice of tbe peace. Tbe court did not find tbat any of tbe statements of tbe uncontradicted affidavit or answer were untrue, but simply tbat they were immaterial. Defendant also requested tbe court to find such of tbe facts stated in tbe affidavit as be deemed to be relevant or material, and this tbe judge refused to do.

Tbe court bolding, in effect and as matter of law, tbat tbe judgment bad been paid, and no appeal could be taken from it, thereupon dismissed tbe case.

Tbe defendant duly and regularly excepted to tbe several rulings of tbe court, and appealed to this Court.

*596 Bourne, Parker & J ones for plaintiff.

P. W. Thomas for defendant.

"WalKes, J.,

after stating tbe material facts: Tbe plaintiff’s contention that there was no permission given by tbe court to file tbe answer is without merit. Tbe court placed its decision upon no such ground, and, besides, it is too late now to come forward with such an objection. If permission was not in fact granted, it was eminently proper that it should have been. We base our decision upon tbe merits, discarding technical matters.

Tbe case lies within a narrow compass. There was a judgment in tbe justice’s court against tbe defendant, from which be duly and regularly appealed, and caused tbe appeal to be docketed in tbe Superior Court, in due form and within proper time. Tbe defendant alleges that be was compelled to pay tbe judgment pending tbe appeal, because by reason of tbe acts of tbe plaintiff be was unable to give a bond to stay tbe execution, and that bis property would have been taken and sold under process if be bad not done so. That be therefore paid tbe judgment, not in final satisfaction of it, and without intending to further prosecute bis appeal, or to defend tbe action, but simply because be was forced to do so. He also alleges that plaintiff bad a deed of trust upon bis property (which was subject, under tbe statute, to tbe lien of tbe judgment, which bad been docketed), and threatened to foreclose it under tbe power of sale contained in it, if tbe judgment was not paid. That plaintiff “used tbe notes and' deed of trust, and tbe power which they gave him over tbe defendant unlawfully to extort from defendant and $15 to plaintiff’s attorney,” and be further alleged, in substance, tbe $100, of which $85 was to be in payment of tbe judgment aforesaid, that be was reduced to such straits by plaintiff’s unlawful conduct that be was, by duress, forced to decide between losing bis property or paying tbe unjust judgment, which be was then contesting, and which it was bis lawful purpose to resist to tbe last, and that tbe payment of tbe judgment was not voluntary, and was certainly not intended as an agreed and final satisfaction of tbe judgment. Defendant, on tbe contrary, alleges that tbe payment of tbe judgment was not only involuntary, but was induced by tbe threat and coercion of tbe plaintiff, if not by legal duress, « and, at all events, it was not intended as a withdrawal of all further resistance or opposition to tbe judgment, and as a surrender of bis rights under tbe appeal, or any of them, and that it should not be construed to be any impairment of said rights. There are other serious allegations in tbe defendant’s answer, which be also used as an affidavit, but they need not be more specially stated or considered. It must be noted that tbe court refused to consider tbe answer, used as an affidavit, as irrele*597vant, and therefore we must assume its allegations and averments to be true, and, if thus considered, the court should not have dismissed the appeal, but instead should at least have inquired as to the nature of the payment of the money in the judgment, whether intended as a free and full satisfaction of it or merely for the purpose of preventing the issue of an execution upon it and a sale of property of the plaintiff, so that he might continue to prosecute his appeal and to further contest the matter with the defendant.

¥e were cited to Cowell v. Gregory, 130 N. C., 80, in support of the ruling of the court in this case, but we find that case, upon a proper consideration of its facts, to be directly against the plaintiff. These were the facts in that case: “The justice of the peace 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 announced 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.” It will readily be seen that the facts there were radically different from those in this record. The debt was paid by the defendant (in that case) “to get rid of it,” and he also paid the costs.

In 2 Cyc. Law & Pro., 647, it is said: “Voluntary payment or performance of a judgment is generally held to be no bar to appeal, or writ of error for its reversal, unless such payment was made by way of compromise and agreement to settle the controversy, or unless the payment or performance of the judgment was under peculiar circumstances which amounted to a confession of its correctness.” And it is stated in 2 Ene. of PI. & Prae., 181, that “Payment of a collectible judgment rendered by a court of competent jurisdiction is involuntary, and does not bar the appeal of the unsuccessful party below.” And this is true, nothing else appearing. Justice Merrimon said in Lytle v. Lytle, 94 N. C., at p. 525: “It is well settled that where a party is put out of possession of land, in pursuance of a judgment or order improvidently granted, or is required to pay money, and the judgment is afterwards declared void or is set aside, the Court will promptly, as far as practicable, restore the party complaining to the possession of the land, and give him remedy for the money so paid. The law forbids injustice, and it will not allow its process to work injury to a party against whom it ..goes by improvidence, mistake, or abuse. It will always restore such *598party promptly, and place him as nearly as may be in tbe same plight and condition as be was before tbe process issued. Tbis is due alike to tbe integrity of tbe law and to tbe party asking relief,” citing cases. Tbis implies tbat tbe defendant may either file a stay bond and prevent tbe issuing of an execution, or pay tbe debt, and if successful in bis appeal, may have an order for tbe restoration of money, if paid, or of property, if taken or turned over to tbe plaintiff. O. S., 1534, provides : “If tbe judgment appealed from, or any part thereof, be paid or collected, and tbe judgment be afterwards reversed, tbe appellate court shall order tbe amount paid or collected to be restored, with interest from tbe time of such payment or collection. Tbe order may be obtained on proof of tbe facts made at or after tbe bearing of tbe apjteal, on a previous notice of six days. If tbe order be obtained before tbe judgment of reversal is entered, tbe amount may be included in tbe judgment.”

It thus appears tbat if tbe appellant desires a stay of execution be must give a bond, or if be does not, be must pay tbe debt, in which latter case, if be prevails, it will be restored to him by order of tbe court.

Accepting tbe statement of tbe defendant’s answer, or affidavit, to be true, it would appear tbat defendant did not intend, by paying tbe debt, to “throw up bis bands” and abandon tbe appeal, but merely to ward off an execution and sale of bis property until tbe case could be beard and finally disposed of by tbe court, or there is evidence of tbis being tbe fact.

Tbe question raised by tbe defendant’s answer or affidavit may be submitted to a jury, if tbe plaintiff takes issue with tbe defendant upon it, or tbe question thus raised may be otherwise determined by a finding of tbe court or a referee as tbe parties may agree or tbe court may decide.

As tbe plaintiff alleges tbat tbe defendant bad abandoned bis appeal by tbe payment of tbe amount of tbe judgment, tbe burden necessarily is on him to show it. Tbe mere payment of tbe money is not of itself sufficient under tbe facts and circumstances of tbis case, so far, at least, as developed, to show tbe abandonment.

Tbe defendant’s answer or affidavit was in no sense a counterclaim, as contended, but was more in tbe nature of an answer to tbe motion of tbe plaintiff to dismiss tbe appeal.

There was error in tbe ruling of tbe court, which is reversed, and tbe ease will further proceed in tbe Superior Court in accordance with law and tbe course and practice of tbe court.

Error.