Motion to credit judgment with partial payment and modify execution accordingly.
The plaintiffs instituted an action against D. B. Archbell, Norfolk Southern Railroad Company, C. F. Garner, and C. C. Fry, alleging an unlawful conspiracy in restraint of trade, C. S., 2563, which action was nonsuited at the September Term, 1929, Moore Superior Court, and reversed on appeal. Lewis v. Archbell, 199 N.C. 205, 154 S.E. 11.
Thereafter, on 15 September, 1931, the plaintiffs came into court and suffered a voluntary nonsuit as to D. B. Archbell and Norfolk Southern Railroad Company, agreeing in open court not to sue said defendants "for any matter or thing growing out of or alleged in the complaint in this cause."
The cause then came on for trial against the defendants, C. C. Fry and C. F. Garner, at the September Term, 1933, Moore Superior Court, and resulted in verdict and judgment for plaintiffs. The jury fixed the damages at $600 and judgment was rendered for treble this amount as provided by C. S., 2574. On appeal, the judgment was affirmed. Lewis v. Fry, 207 N.C. 852.
The present motion was filed 29 December, 1934, while execution was in the hands of the sheriff, and heard at the February Term, 1935, Moore Superior Court. From judgment dismissing the motion, defendants appeal, assigning errors. *Page 424 after stating the case: His Honor was evidently of the opinion that the failure to bring the matter to the attention of the court at the time of trial, as was done in Holland v. Utilities Co., ante, 289, deprived movants of their right to have the judgment (not verdict) credited with the amount paid plaintiffs by their codefendants for the covenant not to sue. Homansv. Tyng, 67 N.Y. Supp., 792. Ordinarily, this view might prevail (lexreprobat moram, Battle v. Mercer, 188 N.C. 116, 123 S.E. 258) but for the fact that the matter appears on the face of a judgment entered in the cause.
It is provided by C. S., 620, that payments made upon docketed judgments and not entered of record, may be credited upon motion and hearing. True, the amount received by plaintiffs for the covenant not to sue some of the defendants was not strictly within the terms of this statute, nevertheless it would seem to be within its spirit. The payment inured to the benefit of movants. Holland v. Utilities Co., supra, It was said in Homans v. Tyng,supra, that where a party entitled to enforce a judgment, on which execution has issued, consents to an amendment of the judgment, reducing the amount of recovery, the proper procedure is not to vacate the execution but reduce it in accordance with the agreement.
That movants are not entirely out by their laches — the execution being still in the hands of the sheriff — is supported, in tendency at least, by what was said, and the authorities cited, in Williams v. Dunn,158 N.C. 399, 74 S.E. 99.
Error.