Ankeny v. Moffett

• Decision Date: 14 June 1887
• Citation: 33 N.W. 320,37 Minn. 109
• Parties: Alexander T. Ankeny, Assignee, v. J. B. Moffett and another
• Court: Minnesota Supreme Court

33 N.W. 320

37 Minn. 109

Alexander T. Ankeny, Assignee, v. J. B. Moffett and another

Supreme Court of Minnesota

June 14, 1887

Plaintiff brought this action in the district court for Hennepin county, to enjoin a sale upon execution under the circumstances recited in the opinion. Defendants appeal from an order by Rea, J., granting plaintiff's motion for judgment upon the pleadings.

Order reversed.

Welch Botkin & Welch, for appellants, cited, among other cases Harris v. Frank, 29 Kansas, 200.

Ankeny & Merrill, for respondent.

OPINION

Mitchell, J.

Defendant Moffett and one Johnson, being severally the owners of two adjoining lots, joined in erecting a building upon them, and united in letting the contract for its construction to one builder. While the building was in process of erection, a portion of its walls fell, and injured one Walters, who thereupon sued Moffett and Johnson for damages, and recovered a joint judgment against the two. They were not guilty of any intentional wrong, or of any bad faith, or of any act in itself illegal, and hence the ground of their liability to Walters must have been mere negligence in the manner of erecting the building. After the rendition of the judgment Moffett, being threatened with execution, but no levy having been made on his property, paid the entire judgment, filed his notice of payment and claim to contribution as required by statute, and then caused execution to be issued for one-half of the amount of the judgment, and levied on the property of Johnson. Johnson subsequently made an assignment for the benefit of creditors to plaintiff, who brings this action to enjoin the sale on the execution.

The whole case turns upon the construction of the statute relating to contribution and subrogation between joint judgment debtors, (Gen. St. 1878, c. 66, § 330.) That in this case Moffett is entitled to contribution from Johnson cannot be doubted. Whether the statute cited was intended to change the rule that there can be no contribution among wrong-doers it is unnecessary to consider. That rule is applicable only where the person seeking the contribution was guilty of an intentional wrong, or, at least, where he must be presumed to have known that he was doing an illegal act. It is immaterial whether the ground of Walter's recovery was the negligence of Moffett and Johnson personally, or that of their agent, the builder. In neither one was there any intentional wrong. In the one case it would be mere negligence in doing a lawful act; in the other case there would be no personal fault whatever on their part. In neither case would the rule apply. Cooley, Torts, 144-147; Adamson v. Jarvis, 4 Bing. 66; Bailey v. Bussing, 28 Conn. 455; Wooley v. Batte, 2 Car. & P. 417; Horbach v. Elder, 18 Pa. 33; Armstrong Co. v. Clarion Co., 66 Pa. 218; Nickerson v. Wheeler, 118 Mass. 295.

Plaintiff's contention, however, is that Moffett is not entitled to use this judgment until the rights and liabilities of Moffett and Johnson, as between themselves, have been litigated, and a judicial determination had that he is in fact entitled to contribution; that, this question not being involved or determined in the Walters Case, Moffett must establish his claim in an action for contribution against Johnson, before he can have execution on the Walters judgment. We are of opinion that this is not the meaning of the statute. Where one of several defendants, against whom there was a joint judgment, paid the entire sum, there was much conflict of opinion as to whether the judgment was necessarily extinguished, or whether it could be kept on foot for the benefit of the party making the payment, (Freem Judgm. § 472;) and, even where the right of the party making the payment to the benefit of the...