Davis v. Schlemmer

• Citation: 50 N.E. 373,150 Ind. 472
• Decision Date: 18 May 1898
• Docket Number: 18,492
• Parties: Davis et al. v. Schlemmer, Administrator
• Court: Indiana Supreme Court

50 N.E. 373

150 Ind. 472

Davis et al. v. Schlemmer, Administrator

No. 18,492

Supreme Court of Indiana

May 18, 1898

From the Montgomery Circuit Court.

Reversed.

B Crane and A. B. Anderson, for appellants.

E. C Snyder, for appellee.

OPINION

Monks, J.

This action was brought by one Nicholas Schendorf against appellants to have a certain judgment adjudged satisfied, and to enjoin the collection thereof by execution. After the commencement of the action said Schendorf died, and appellee was duly appointed administrator of his estate, and, by order of court, substituted as a plaintiff.

It appears from the special finding of facts that the appellant John Hitch, on March 9, 1894, recovered a judgment against appellee's decedent and one Margaretta Lutz for two hundred and seventy-seven and 75-100 dollars, and that on April 14, 1894, one Stephen Allen having become interested in the payment of said judgment, he procured the appellant, Caleb Davis, to become replevin bail for the stay of execution on said judgment, which stay of execution was executed and attested in all respects as required by the statute. Afterwards, on September 8, 1894, said John Hitch caused an execution to be issued on said judgment to the sheriff of Montgomery county, against the judgment defendants and said replevin bail, Caleb Davis, and said Davis was compelled to and did pay to said sheriff the full amount of said judgment, principal and interest and costs, which said sheriff indorsed on said execution as a payment thereof in full. The sheriff on the same day paid to John Hitch the full amount of the principal and interest due upon said judgment, and at the same time said Hitch assigned said judgment to said Caleb Davis, as required by section 612, Burns' R. S. 1894 (603, Horner's R. S. 1897), except that the same was not attested by the clerk. Afterward, said appellant, Caleb Davis, caused an execution to be issued on said judgment "for the use and benefit of Caleb Davis, assignee of said judgment." This is the execution sought to be enjoined in this action. Neither of the judgment defendants procured or requested said Caleb Davis to become replevin bail on said judgment, nor to pay the same after the first execution had been issued thereon.

Upon these facts the court stated as a conclusion of law that appellee was entitled to a decree that said judgment was fully paid and satisfied, and enjoining the appellants from levying said execution upon the property of appellee's decedent.

Section 702, Burns' R. S. 1894 (710, Thornton's R. S. 1897), provides that a person against whom a judgment has been rendered may have stay of execution "by procuring one or more freehold sureties to enter into a recognizance, or acknowledging themselves bail for the defendant for the payment of the judgment," etc.

The legal effect of the entry of replevin bail is that of a judgment confessed. Section 709, Burns' R. S. 1894 (717, Thornton's R. S. 1897); Reissner v. Dessar, 80 Ind. 307, 314; Hardenbrook v. Sherwood, 72 Ind. 403; Baker v. Merriam, 97 Ind. 539.

Section 1228, Burns' R. S. 1894 (1237, Thornton's R. S. 1897), provides that when any replevin bail shall be compelled to pay any judgment, or any part thereof, the judgment shall not be discharged by such payment, but shall remain in force for the use of the bail making such payment, and after the plaintiff is paid, so much of the judgment as remains unsatisfied may be prosecuted to execution for his use. Under the provisions of said section, when a replevin bail pays the judgment, the same is not thereby satisfied, but when the record shows such payment by him, he is entitled to an execution thereon, the same as a judgment plaintiff, without any order of court therefor. Dessar v. King, 110 Ind. 69, 10 N.E. 621; Reissner v. Dessar, supra, p. 314; Wilson v. Murray, 90 Ind. 477.

Even without said section, the payment of a judgment by a replevin bail would not satisfy the same, but such judgment would be kept alive in equity, and the replevin bail would be entitled to be subrogated to all the rights of the judgment plaintiff, and could by a proper suit, obtain an order of court for execution, to his use on said judgment, against the judgment defendants. Vert v. Voss, 74 Ind. 565, 569; Gerber v. Sharp, 72 Ind. 553; Pence v. Armstrong, 95 Ind. 191, 196; Armstrong v. Farmers' Nat'l Bank, 130 Ind. 508, 511, 30 N.E. 695; 2 Brandt on Suretyship and Guaranty, section 298; Sheldon on Subrogation, section 1 on p. 2, and section 93 on p. 107. Said statute, therefore, merely re-enacts the equitable rule of subrogation in regard to the effect of payment of judgments by replevin bail, and the other sureties named. The only right given to a replevin bail that did not already exist in equity was to have an execution on such judgment without an order of court or an assignment of the judgment by the owner thereof to such replevin bail.

It is insisted by appellee that such undertaking of bail for the stay of execution is a contract, and that as the judgment defendants did not procure or request the appellant, Caleb Davis, to become replevin bail, no contractual relation was created between the judgment defendants and appellant Davis, and he acquired no rights, as against them, by so becoming replevin bail, and paying said judgment. That Allen, a stranger to the judgment, having procured him to become replevin bail without authority from the judgment defendants, the execution of such undertaking did not create the relation of principals and surety between said judgment defendants and the replevin bail; that as to them he was a mere volunteer, and could not recover for money paid to their use, because the same was not paid at their request, either express or implied. It is not the law, as insisted by appellant, that a replevin bail cannot collect by execution a judgment which he has paid unless procured to become such by the judgment defendants. It is true, however, that a mere stranger or volunteer who pays a debt cannot recover therefor against the person whose debt is thus paid, nor can he be subrogated to the rights of the creditor to whom the debt is paid. Reeves, Admr., v. Isenhour, 59 Ind. 478; Shirts v. Irons, 28 Ind. 458; Woodford v. Leavenworth, 14 Ind. 311, 313; Chrisman v. Long, 1 Ind. 212; McClure v. Andrews, 68 Ind. 97; Nash v. Taylor, 83 Ind. 347; Binford, Admr., v. Adams, Admr., 104 Ind. 41, 3 N.E. 753; 24 Am. and Eng. Ency. of Law, 281-284; Harris' Law of Subrogation, sections 793, 794; Sheldon on Subrogation, sections 3, 186.

It is said in Sheldon on Subrogation, section 186, " The voluntary payment of the note made by one who is not bound for it and had no interest in discharging it affords no ground for subrogation. But if a stranger has made such a payment without previous authority from the debtor, and before any ratification of the payment by the debtor the creditor and the stranger undo the transaction, and the creditor returns the money to the stranger, it is then too late for the debtor to ratify the payment, and the creditor can enforce the original obligation against him. Walter v. James, L. R. 6 Exch. 124; Mechanics' Bank v. Seitz, 30 W. N. Cas. 261. Such a payment made by a stranger becomes an efficacious payment only when it is ratified or adopted by the debtor. Edgeworth Co. v. Wetherbee, 72 Mass. 166; Simpson v. Eggington, 10 Exch. 845;" Jones v. Broadhurst, 9 C. B. 193, 67 E. C. L. R. 193; Belshaw v. Bush, 11 C. B. 191, 73 E. C. L. R. 191; Martin v. Quinn, 37 Cal. 55; Dodge v. Freedman's Savings Co., 93 U.S. 379, 23 L.Ed. 920. See, also, 1 Beach on Modern Law of Contracts, sections 366, 369, and cases cited. Crumlish, Admr., v. Central Impr. Co., 38 W.Va. 390, 23 L. R. A. 120, 18 S.E. 456, and note, pp. 120-132, 18 S.E. 456, 45 Am. St. 872.

But one who may be compelled to pay a debt, or the protection of whose property or interest demands that he pay it, is not a stranger or mere volunteer. Binford Admr., v. Adams, Admr., supra, on p. 42; Sidener v. Pavey, 77 Ind. 241; Rardin v. Walpole, 38 Ind. 146; Bunting v. Gilmore, 124 Ind. 113, 119, 24 N.E. 583; Chaplin v. Sullivan, 128 Ind. 50, 54, 27 N.E. 425; Backer v. Pyne, 130 Ind. 288, 292, 30 N.E. 21; Heritage v. Paine, 2 Ch. Div. 594; Farmers Bank v. Erie R. R. Co., 72 N.Y. 188; Cole v. Malcolm, 66 N.Y. 363; Ellsworth v. Lockwood, 42 N.Y. 89; Jacques v. Fackney, 64 Ill. 87; Cheesebrough v. Millard, 1 John Ch. (N. Y.) 409, 7 Am. Dec. 594; Mosier's Appeal, 56 Pa. 76, 93 Am. Dec. 783; Hoover v. Epler, 52 Pa. 522; Cottrell's Appeal, 23 Pa. 294; Kelchner v. Forney, 29 Pa. 47; Wallace's Appeal, 5 Pa. 103; Greiner's Estate, 2 Watts. (Pa.) 414; Payne v. Hathaway, 3 Vt. 212; 24 Am. and Eng. Ency. of Law, 281, 285-290; Sheldon on Subrogation, section 245; Harris' Law of Subrogation, section 795.

If a person becomes replevin bail without the procurement of the judgment defendants, under such circumstances that when he pays the judgment he would be entitled in equity to subrogation to the rights of the owner of the judgment, he is clearly entitled to collect such judgment by execution under the statute.

The right of subrogation is not founded upon contract, express or implied, but upon principles of equity and justice, and is broad enough to include every instance in which one party not a mere volunteer, pays a debt for another, primarily liable, and which in good conscience and equity should have been paid by the latter. Spaulding v. Harvey, 129 Ind. 106, 109, 13 L. R. A. 619, 28 Am. St. 176, 28 N.E. 323; Huffmond v. Bence, 128 Ind. 131, 137, 27 N.E. 347; Sidener v. Pavey, supra; Gerber v. Sharp, 72 Ind. 553, 556-558; Rooker v. Benson, 83 Ind. 250, 256; Kyner v. Kyner, 6 Watts 221; Harnsberger v. Yancey, 74 Va. 527, 33 Gratt. 527; Miller...