Deleshaw v. Edelen

• Decision Date: 07 February 1903
• Citation: 72 S.W. 413
• Parties: DELESHAW et al. v. EDELEN.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 413

72 S.W. 413

DELESHAW et al. v. EDELEN.^*

Court of Civil Appeals of Texas.

February 7, 1903.

Appeal from district court, Cooke county; D. E. Barrett, Judge.

Suit by W. T. Edelen against G. W. Deleshaw and others to restrain the collection of a judgment and recover damages for an alleged malicious levy of an execution. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Potter & Potter, for appellants. Stuart & Bell, for appellee.

STEPHENS, J.

The City Bank of Whitesboro, Tex., recovered a judgment in justice court for $131 against G. W. Deleshaw, E. T. Edelen, and H. E. Maxwell on a promissory note executed by them jointly, which was a substitute for a note previously executed by them as sureties for a son of G. W. Deleshaw. This judgment the bank transferred to G. W. Deleshaw upon his executing to it his individual note for the amount of the judgment, which was accepted as payment in full by the bank. Thereupon Deleshaw took out execution on the judgment, and had it levied on the property of W. T. Edelen, who brought this suit to enjoin the sale and to recover damages, both actual and vindictive; the levy resulting in closing the saloon of Edelen at Dexter, Tex., for a few hours. From a verdict and judgment in his favor this appeal is prosecuted.

The contention of Edelen was that Deleshaw was primarily liable to the bank for the payment of the note merged in the judgment, and that both he and Maxwell had signed it as sureties merely, and that Deleshaw had paid off and extinguished the judgment. On the other hand, Deleshaw contended that all were jointly and equally liable, and that in giving his note to the bank for a transfer of the judgment to him he intended to keep it alive, and use it to compel contribution from Edelen and Maxwell; the bank accepting his note in lieu of the judgment with that understanding. On the issue of suretyship the evidence was conflicting. Upon the other issue, while appellant admitted that the bank had accepted his individual note in full satisfaction of the judgment, as was shown by the written transfer offered by him as well as by entry on the justice's docket, he offered to prove the circumstances attending the transaction for the purpose of showing that it was the understanding and intention of both himself and the bank that the judgment should be kept alive for his benefit against his co-obligors. The court excluded this evidence, and instructed the jury that the issuance as well as the levy of the execution "was wrongful and illegal," and to those rulings error is assigned. The question thus raised is one upon which the authorities are at variance, the courts of New York and some other states holding that, "where one of several defendants against whom there is a joint judgment pays the other party the entire sum due, the judgment becomes thereby extinguished, whatever may be the intention of the parties to the transaction," while many other courts of equal authority, taking a broader view, give controlling effect to the intention of the parties. 2 Freeman on Judgments, sec. 472; Merchants' National Bank v. Great Falls Opera House Co. (Mont.) 57 Pac. 445, 45 L. R. A. 285, 75 Am. St. Rep. 499. The reasoning of the court in the case just cited, in which the two lines of decision are reviewed and the New York rule is rejected, meets with our approval, and accords with the views heretofore expressed by this court. Huggins v. White, 27 S. W. 1066; Beville v. Boyd, 41 S. W. 670, 42 S. W. 318. Our Legislature has also manifested disapproval of the New York rule in giving a surety who has paid the judgment an execution against his co-surety, thus keeping the judgment alive in such cases even when it is paid without any assignment of it, or any agreement or understanding that it shall be kept alive. Rev. St. art. 3816. In cases where the judgment may be kept alive by contract there would seem to be no necessity for legislative action, and none seems to have been taken. The general policy of our law to avoid a multiplicity of suits would seem to warrant, if not encourage, the making of a contract on the part of one paying off the judgment for a transfer of it to himself so as to keep it alive for convenience in compelling contribution from his codefendant in the judgment; thus avoiding unnecessary litigation. But our Supreme Court, in the case of Ft. Worth Nat. Bank v. Daugherty, 81 Tex. 302, 16 S. W. 1028, while not necessary to the decision of that case, as stated in the opinion of Justice Henry, seem nevertheless to have adopted the New York...