# Brown v. Norfolk Southern Railroad

> Supreme Court of North Carolina · September 18, 1935 · 208 N.C. 423

URL: https://www.frixlaw.com/law-library/cases/3677635

## Case

- **Full name:** J. M. BROWN Et Al. v. NORFOLK SOUTHERN RAILROAD COMPANY Et Al.
- **Court:** Supreme Court of North Carolina
- **Decided:** September 18, 1935
- **Citations:** 208 N.C. 423; 181 S.E. 279; 1935 N.C. LEXIS 435
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Stagy
- **Judges:** Stagy
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3677635

## Opinion text

Stagy, C. J.,
after stating tbe case: His Honor was evidently of tbe opinion tbat tbe failure to bring tbe matter to tbe attention of tbe court at tbe time of trial, as was done in
Holland v. Utilities Co., ante,
289, deprived movants of tbeir right to bave tbe judgment (not verdict) credited witb tbe amount paid plaintiffs by tbeir codefendants for tbe covenant not to sue.
Homans v. Tyng,
67 N. Y. Supp., 792 . Ordi--narily, tbis view might prevail
(lex reprobat moram, Battle v. Mercer,
188 N. C., 116 , 123 S. E., 258 ) but for tbe fact tbat tbe matter appears on tbe face of a judgment entered in tbe cause.
It is provided by C. S., 620, tbat payments made upon docketed judgments and not entered of record, may be credited upon motion and bearing. True, tbe amount received by plaintiffs for tbe covenant not to sue some of tbe defendants was not strictly within tbe terms of tbis statute, nevertheless it would seem to be within its spirit. Tbe payment inured to tbe benefit of movants.
Holland v. Utilities Co., supra,
It was said in
Homans v. Tyng, supra,
tbat where a party entitled to enforce a judgment, on which execution has issued, consents to an amendment of tbe judgment, reducing tbe amount of recovery, tbe proper procedure is not to vacate tbe execution but reduce it in accordance witb tbe agreement.
Tbat movants are not entirely out by tbeir laches — tbe execution being still in tbe bands of tbe sheriff — is supported, in tendency at least, by what was said, and tbe authorities cited, in
Williams v. Dunn,
158 N. C., 399 , 74 S. E., 99 .
Error.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3677635. Public record. Not legal advice.