
    Duff Green, appellee, v. George W. Hall et al., appellants.
    Filed January 3, 1895.
    No. 5931.
    Appeal: Waiver by Payment Must be Voluntary. A motion of an appellee to dismiss an appeal because of the payment by appellant of the judgment from which an appeal had been taken must be overruled when it is shown that such payment was not voluntary, but was made to avoid a sale of appellant’s property . on an execution issued for the satisfaction of the aforesaid judgment.
    Motion by appellee to dismiss appeal from the district court of Douglas county.
    
      Kennedy, Gilbert & Anderson, for the motion.
    
      J3. W. Simeral and William Simeral, contra.
    
   Ryan, C.

In this case there was an appeal from a deficiency judgment for $3,578.10 and costs, rendered in the district court of Douglas county, of which judgment a transcript was duly filed in the office of the clerk of the district court of Lancaster county. For its collection there afterwards, on October 6, 1892, was placed in the hands of the sheriff of the last named county an execution, under and by virtue of which the sheriff advertised for sale 116 lots, owned by appellant Coffman. The date fixed for this sale was November 29, 1892. It does not appear, however, why this sale was not made, neither does the sheriff’s return show a postponement. The execution was returned, paid in full July 6, 1893, on which day there was executed by the sheriff, a receipt for the costs. The judgment with accru? ing interest was discharged by the following payments: January 4, 1893, $504.37; March 2, 1893, $2,904.72;. June 19, 1893, $355.50. All these payments, as will readily be seen, were made while the sheriff held the execution for the collection of the judgment in extinguishment of which they were made. The appellee after the case had been submitted for final determination filed a motion to dismiss the appeal for the reason that the judgment appealed from had been fully, actually, unconditionally, and voluntarily, paid by one of the appellants. In resistance of this motion, the appellants have submitted the affidavit of Yictor H. Coffman, the appellant by whom the payments were made, to which affidavit he attached a copy of the execution and return showing the receipt of the execution by the sheriff, his advertisement of the lots of Coffman for sale as above described, and the date whereon said return was made, and the payment of costs. The dates of the several payments above recited were shown in support of the motion of appellee. Coffman’s affidavit was to the effect that to avoid a sale of the lots advertised he had made these payments, and that they were not voluntarily made. There was given no supersedeas undertaking to suspend the enforcement of the judgment against appellants, as might have been done under the provisions of section 677 of the Code of Civil Procedure. Under these circumstances a sale of the property advertised would have vested in the purchaser a title which could not be affected by the reversal of the judgment appealed from. (Sec. 508, Code Civil Procedure.)

In support of the motion to dismiss there has been cited but one precedent, which it is claimed is found in Hipp v. Crenshaw, 64 Ia., 404. There is, however, in the case cited, a recognition of the principle that if payment of a judgment appealed from is made under duress, the appeal should not be dismissed on motion of the appellee based solely on the fact of such payment. It was held that the appeal should be dismissed because the payment had been made, merely to enable appellant to obtain a loan on real property effected by the lien of the judgment appealed from, a condition of affairs which did not justify the inference of duress. The right of a judgment debtor to have an appeal determined, notwithstanding payment thereof has been coerced by legal process during its pendency, is sustained by Hiler v. Hiler, 35 O. St., 645. (In re Walter, 7 So. Rep. [Ala.], 400.) In Scholey v. Halsey, 72 N. Y., 578, it was moreover held not indispensable to a right of recovery of money paid on a judgment before its reversal to show that such payment had been coerced by execution* The motion of appellee to dismiss this appeal should be

Overruled.  