Bostwick v. Bryant

• Decision Date: 28 February 1888
• Docket Number: 13,089
• Citation: 16 N.E. 378,113 Ind. 448
• Parties: Bostwick et al. v. Bryant
• Court: Indiana Supreme Court

16 N.E. 378

113 Ind. 448

Bostwick et al. v. Bryant

No. 13,089

Supreme Court of Indiana

February 28, 1888

From the Elkhart Circuit Court.

The judgment is reversed, with costs, and the cause is remanded.

J. H Baker, F. E. Baker and J. H. Defrees, for appellants.

H. C Dodge, for appellee.

OPINION

Zollars, J.

This action by appellee against appellants is upon a promissory note for $ 300 executed by them to Anna S. Bloomer and by her assigned to appellee. The note is not payable at a bank, and hence is not governed by the law merchant.

The first paragraph of the answer by appellants was as follows:

"The defendants for first answer admit the execution of the note in suit, but for partial answer in defence say, that said note was executed by Thomas J. Bostwick as principal, and Samuel F. Bostwick and Benjamin F. Stephens as sureties therein, the said Thomas J. Bostwick having received the whole consideration for which said note was executed, and Samuel F. Bostwick and Benjamin F. Stephens having received no part thereof, which fact of suretyship was well known to Anna S. Bloomer, the payee of said note, at the time of its execution. And these defendants aver that Elias S. Isom and George H. Foote became and were the owners of the debt evidenced by the note in suit for the whole amount thereof, except the costs of suit, in manner following, that is to say: that on the 15th day of June, 1884, said Isom and Foote duly recovered a judgment in the circuit court of Elkhart county, Indiana, for the sum of thirteen hundred dollars and sixty-five cents, and costs, against the payee of the note in suit, Anna S. Bloomer; that an execution was duly issued by the clerk of this court to the sheriff of Elkhart county against said Anna S. Bloomer on said judgment, and said execution was duly returned by the sheriff of said county, properly endorsed 'no property found whereon to levy;' that the said Isom and Foote thereupon instituted proceedings in this court supplementary to execution on said judgment against said Anna S. Bloomer, who was duly notified of the pendency of said proceedings; that in the said proceedings the said Isom and Foote alleged, among other things, that the said Thomas J. Bostwick was indebted to the said Anna S. Bloomer in the sum of three hundred dollars, and notice was duly served on said Thomas J. Bostwick to appear and answer as to his said indebtedness to said Anna S Bloomer; that in obedience to said notice the said Thomas J. Bostwick appeared and answered, admitting that he owed and was indebted to said Anna S. Bloomer in the sum of three hundred dollars as alleged; that the debt so admitted by him to be due and owing to said Anna S. Bloomer was the identical debt and money evidenced by the note sued upon in this action, but that said Thomas J. Bostwick, not having the said note before him, and not having seen the same for a long time, by mistake and inadvertence misdescribed the date of said note, and he also gave the rate of interest in his said answer as eight per cent., which was correct, for the reason that the defendant, Thomas J. Bostwick, who was the principal debtor in said note, and the other makers sureties merely, had made an agreement with said payee of said note three years before that time that only eight per cent. interest should be paid on said note. And the defendants further say that such proceedings were further had that this court duly adjudged, on the 18th day of July, 1884, that the said Thomas J. Bostwick was indebted to the said Anna S. Bloomer in the sum of three hundred dollars, and that he should pay to said Isom and Foote, of said debt so due and owing by him to said Anna S. Bloomer, the sum of one hundred and thirty-seven dollars and ninety-six cents, and costs, and that it should be credited and held as a payment on said note in suit, which judgment is yet in full force, unreversed and unappealed from; and the defendants aver that the judgment aforesaid was rendered against the said Thomas J. Bostwick before he had any notice of the assignment of said note to the plaintiff, and that such assignment to the plaintiff was wholly voluntary. Wherefore the defendants ask that they have credit on said note in the sum of two hundred dollars, and other relief."

Appellants have assigned as error the sustaining of a demurrer to the foregoing answer. This assignment suggests several questions:

First. Could the order or judgment against Thomas J. Bostwick in the supplementary proceedings have been made available by him as a defence pro tanto, in an action upon the note by the payee, Anna S. Bloomer?

Second. If so, may he avail himself of the same defence against appellee, the assignee of the payee?

Third. May the other appellants, as sureties for Thomas J. Bostwick, avail themselves of the order or judgment against him in the supplementary proceeding as a defence to this action?

First. The statute provides that upon a proper affidavit a person indebted to a judgment defendant may be required to appear and answer concerning such indebtedness; and that upon the hearing the judge of the court may order any property of the judgment debtor, or any debt due to the judgment debtor, to be applied to the satisfaction of the judgment, and that such judge shall have power to enforce all orders and decrees in the premises by attachment or otherwise. R. S. 1881, section 819, et seq.

It has been held that a proceeding supplementary to execution, under the above statute, is a civil action within the terms of the civil code. Burkett v. Holman, 104 Ind. 6, 3 N.E. 406; Burkett v. Bowen, 104 Ind. 184, 3 N.E. 768; Baker v. State, ex rel., 109 Ind. 47, 9 N.E. 711. And so, it has been held, that an adjudication in such a proceeding is a valid plea of res adjudicata. Baker v. State, ex rel., supra. In Freeman on Judgments, section 327, it is said: "If the parties to such a proceeding, as between themselves and privies, are not estopped from again litigating the same matters in another form of action, the whole proceeding would be but a judicial farce, accomplishing no useful end. It is too plain for argument, that after an adjudication in such a proceeding, in reference to the liability of property to be applied to the satisfaction of the execution, the only remedy left either of the parties is by taking an appeal, and that while the adjudication remains in force, both parties are estopped from litigating the same question, in any other case or by any other form of proceeding."

The statute, as we have seen, provides that the judge of the court may make an order in relation to the property of the judgment debtor, and the debts due to him, and may enforce all orders and "decrees" by attachment or otherwise.

Whether the decision and determination as to the debt due to the judgment debtor be called an order or decree, the final determination in relation to such debt, and the payment of it to the plaintiff in the proceeding, are in such sense a judgment that it may be pleaded as a defence, pro tanto, to an action by the judgment debtor against the third person for the same debt which he was ordered to pay to the plaintiff in the proceeding--the creditor of the judgment debtor. Such order, decree or judgment, whatever it may be called, is binding and conclusive upon the parties so long as it is in force. While it stands, the debtor of the judgment debtor has a right to demand that he shall not be subjected to double liability, or, which is the same thing, that he shall not be subjected to two judgments for the same debt. To hold him liable upon the order or judgment in the supplementary proceeding, and upon the original cause of action, would be to double his liability as to the amount of the judgment. Very clearly, a payment of the judgment would decrease his liability, pro tanto, upon the original cause of action. Under the decisions of this court, and the courts of other States upon analogous cases, Thomas J. Bostwick, the principal maker of the note in suit here, against whom judgment was rendered in the supplementary proceedings, could plead that judgment as a defence, pro tanto, to an action against him upon the note by Anna S. Bloomer, the payee. Rooker v. Daniels, 5 Ind. 519.

The proceeding supplementary to execution under our statute, in reaching credits of the judgment debtor, is very similar to the proceeding by attachment and garnishment. It is provided by the statute authorizing garnishment, that the court, upon determining that a person is indebted to the attachment defendant, may order him to pay such indebtedness into court. It is also provided that the court, upon final hearing, may give judgment in favor of the attachment plaintiff against the garnishee, which may be enforced by execution. R. S. 1881, sections 941, 947.

In a supplementary proceeding, the order or judgment of the court against a debtor of the judgment debtor may be enforced by attachment or "otherwise." In a proceeding in garnishment, the judgment of the court against the garnishee, indebted to the attachment defendant, may be enforced by execution. The difference between the judgments, and the manner of enforcing them in the two proceedings, is not sufficient to require a holding that a judgment in one and not in the other proceeding may be pleaded in bar of an action upon the original cause of action. The analogies are so close that the decisions under one of the proceedings may be adopted as authority in the other.

There is a contrariety in the holdings by the different courts, but this court and the supreme courts of some of the other States have held that a judgment against a garnishee, so long as it remains in force, at least, whether paid or not, is a bar to an action against him by the attachment def...