{
  "id": 8631602,
  "name": "WACHOVIA BANK AND TRUST COMPANY, Executor of GWYN EDWARDS, v. W. D. MILLER",
  "name_abbreviation": "Wachovia Bank & Trust Co. v. Miller",
  "decision_date": "1926-05-19",
  "docket_number": "",
  "first_page": "787",
  "last_page": "789",
  "citations": [
    {
      "type": "official",
      "cite": "191 N.C. 787"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "184 N. C., 593",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11271473
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/184/0593-01"
      ]
    }
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  "last_updated": "2023-07-14T21:52:36.568148+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "WACHOVIA BANK AND TRUST COMPANY, Executor of GWYN EDWARDS, v. W. D. MILLER."
    ],
    "opinions": [
      {
        "text": "Brogden, J.\nThe only question in the case is whether or not the payment of a judgment, pending an appeal, produces an abandonment of the appeal.\nThis question was under consideration in this same case reported in 184 N. C., 593.\nThe opinion of the Court, by Walker, J., states the proposition thus: \u201cThe question raised by the defendant\u2019s 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.\u201d\nIn 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: \u201cWas the payment by the defendant of the judgment intended as an abandonment of his appeal at tbe time of sucb payment?\u201d Tbe jury answered, tbe issue, \u201cYes.\u201d Tbe trial judge charged tbe jury as follows: \u201cTbe 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.\u201d Tbe contentions of tbe parties were arrayed fairly and tbe law correctly applied to tbe facts. Tbe judgment rendered must be upheld.\nAlthough 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.\nAppeal dismissed.",
        "type": "majority",
        "author": "Brogden, J."
      }
    ],
    "attorneys": [
      "No counsel for plaintiff.",
      "F. W. Thomas for defendant."
    ],
    "corrections": "",
    "head_matter": "WACHOVIA BANK AND TRUST COMPANY, Executor of GWYN EDWARDS, v. W. D. MILLER.\n(Filed 19 May, 1926.)\n1. Judgments \u2014 Entry\u2014Payment\u2014Cash, Deposit in Lieu of Appeal Bond\u2014 Evidence \u2014 Questions for Jury \u2014 Burden of Proof.\nWhere there appears an entry on the docket of a judgment in the Superior Court of \u201cPaid in full,\u201d upon conflicting evidence as to whether the payment was of the judgment or a cash deposit in lieu of appeal bond, the question at issue is one of fact for the jury, with the burden on defendant asserting that it was a cash deposit only.\n2. Rules of Court \u2014 Appeal and Error \u2014 In Foma Pauperis \u2014 Briefs.\nThe rule of practice in the Supreme Court requiring appellant in appeals in forma pauperis to file seven typewritten copies of his brief and of the transcript, in addition to the original transcript, is mandatory, and a compliance with its provisions is necessary to entitle the appellant to have his appeal decided on its merits.\nCivil actioN tried by Stacie, J., at February Term, 1925, of BuNCOMBE.\nThis action was begun before a justice of the peace by the plaintiff\u2019s testator, Gywn Edwards. Edwards secured a judgment on 21 June, 1920, against Miller for $85.00. Miller appealed to the Superior Court and docketed his appeal on 29 June, 1920. On 25 June, 1920, the defendant paid the judgment, and the judgment docket shows this entry: \u201cPaid in full, this 25 June, 1920.\u201d G-. Edwards, by Sale & Pennell, Attys.\u201d The defendant contends that this payment, pending his appeal, was not a voluntary payment, but was made in lieu of bond to stay execution. The facts are set out in full in the same case reported in 184 N. O., 593.\nNo counsel for plaintiff.\nF. W. Thomas for defendant."
  },
  "file_name": "0787-01",
  "first_page_order": 867,
  "last_page_order": 869
}