Hunt v. Lane

9 Ind. 248

• Court: Indiana Supreme Court
• Decided: June 5, 1857
• Status: Published

Opinion

Gookins, J.

— Complaint by Hunt against Lame, to enjoin proceedings upon an execution, to which a demurrer was sustained, and the suit dismissed. Humt appeals.

The complaint makes the following case: That in 1837, one Overall recovered a judgment against Htmt and Tames H. Lame, in an action of tort, for 322 dollars and costs; that the judgment had been assigned in parts, to various persons; that an unpaid balance had been assigned to Amos Lane, the defendant’s intestate, which was the part now sought to be collected; that the same was really bought with the money of Tames H. Lane, and for his benefit, and was in fact a payment thereof; that it was only transferred to said Amos Lane in order to keep it on foot for the purpose of collecting it from the plaintiff; that he has paid into the clerk’s office one-half the amount of the judgment and costs; that at the November term, 1850, of the Dearborn Circuit Court, the defendant, as administrator of said Amos Lame, deceased, revived the judgment against said Tames H Lane and Hunt, for 351 dollars and 98 cents; that on the 20th of December, an execution was issued thereon, which was levied upon the property, real and personal, of said Lame. It is averred that the real estate was of sufficient value to satisfy the demand; that before the day of sale, the plaintiff, for the purpose of keeping T. H. Lcme from the payment of the judgment, and to compel Hunt to pay the same, directed the sheriff to abandon the levy, and to return the writ, which he did; that he thereupon caused an execution to be issued to the sheriff of Ohio county, where the plaintiff resided, and was threatening to cause it to be levied upon his property.

The return upon the execution alleged to have been levied, is set forth. It does not show a levy upon personal property, but shows a levy upon real estate, after which is the following: “ I hereby abandon the above levy by order of Theodore Gazlay, the plaintiff’s attorney,” — which order is subjoined. It directs the sheriff to relinquish the levy-made upon the real estate of T. H. Lane, the said defendants having personal property subject to execution; and orders the sheriff to levy upon such personal property, in the possession of Hunt. It further appears from the return, that the execution was superseded by a writ from this Court, and that, as to J. H. Lane, it was returned by the plaintiff’s order. The complaint further states that a motion has been made by the plaintiff, to set aside said execution, which was still pending.

Prayer for an injunction to restrain further proceedings upon the execution.

The demurrer assigned for cause that the complaint did not state facts sufficient to constitute a cause of action.

The appellant insists that because it is alleged that the judgment has been paid in full, the demurrer should have been overruled. But it also appears that since the money was so paid, the judgment has been revived by scire facias by the defendant in this action. It is not averred that the fact of the payment of the money by Amos Lane for J. H. Lane, and that the money used for that purpose belonged to the latter, was unknown to the present plaintiff at the time the judgment was revived; nor is any other reason given why the defense was not made in that action. By suffering that judgment to pass, he is concluded, and the. allegation that the debt is paid, must be laid out of the case.

It is a general rule that there is no contribution amongst wrong-doers. Chitty on Contracts, pp. 446, 525, with references to numerous authorities, English and American, which fully sustain the text. There are exceptions to the rule — as where an illegal act is' done by one in good faith, by the command of another, there the latter is bound to indemnify the former. Id. 445. The complaint in this case does not show the nature of the wrong for which' Overall obtained his judgment against J. H. Lane and Hunt. It is therefore governed by the general rule; for he who would avail himself of exceptions must show, himself entitled to them by proper averments. This, then, is a case in which equity will not interfere and the parties will be left to their legal rights.

The complaint shows that there is another proceeding pending to attain the same end that is sought in this action,—that is, a motion to set aside the execution. In Lasselle v. Moore, 1 Blackf. 226, it was held that this was the proper proceeding, and that a bill in chancery would not lie, except for the purpose of staying proceedings until the motion could be made. But it is not assigned as a ground of demurrer, that another action is pending for the same cause. 2 R. S. p. 38, s. 50, sub-sect. 3. The only cause assigned is, that the complaint does not state facts sufficient; and this raises the question — What is the proper practice in this Court, when a demurrer has been sustained below, but not for a cause properly assigned ?

We have decided in numerous cases, that where the judgment below is right, it will not be reversed, although error .may have intervened. It was said in Kenworthy v. Williams, 5 Ind. R. 375, that the specific causes of demurrer relied on must be assigned, as the statúte requires; but there the judgment was reversed for other errors apparent. Also, in Lane v. The State, 7 Ind. R. 426, it was held that a general demurrer, as used under the former practice, to several different paragraphs of an answer, was in effect no demurrer at all under the code, and that a judgment sustaining it must be reversed

(1).

Here, the demurrer conforms strictly to the code. It presented an issue in law in the prescribed form; and the sufficiency of the pleading having been tested by it, and rightly decided, the case is brought within the rule of practice which prevails here, that a judgment correctly given will not be reversed, although it may not have been put upon the right ground in the Court below.

A. Brower, for the appellant (2). J. Rymcm, for the appellee.

Per Curiam. —

The judgment is affirmed with costs.

See The State v. Clark, ante, 241.

Counsel for the appellee presented the following points :

The plaintiff founds his right to the relief which he asks — 1st, on the allegation that the deceased purchased the judgment with the money of J. H. Lane. 2dly, on the supposition that by the defendant’s levy, the judgment was satisfied.

As to the first, it is sufficient to say that it comes too late. That defense should have been set up against the scire facias to revive. The second is also utterly untenable. The return, which is part of the record, shows that the levy has been disposed of. But it is insisted that a plaintiff cannot abandon his levy without an order of Court. It is possible that where a sheriff has made a return of the writ, “levied on,” &c., and it has thereby become part of the record, that such record cannot be altered without leave of the Court; but whilst the writ is in the hands of the sheriff, the plaintiff can control it. But the case presents another point. The plaintiff, Hunt, should have moved the Court to set aside the execution. 1 Blackf. 226.