Dunn v. Stufflebeam

• Decision Date: 22 January 1910
• Citation: 17 Idaho 559,106 P. 1129
• Parties: HENRY DUNN, Respondent, v. WILLIAM G. STUFFLEBEAM, Appellant
• Court: Idaho Supreme Court

106 P. 1129

17 Idaho 559

HENRY DUNN, Respondent, v. WILLIAM G. STUFFLEBEAM, Appellant

Supreme Court of Idaho

January 22, 1910

COJUDGMENT DEBTOR-PAYMENT OF JUDGMENT BY ONE-CONTRIBUTION FROM OTHER-NOTICE OF MOTION FOR-PLEADINGS-CASE MADE BY-SURPLUSAGE-WHAT RELIEF MAY BE GRANTED-ADDITIONAL RELIEF-SECTION 4499.

1. Sec 4499, Rev. Codes, provides for contribution between joint judgment debtors; it affords additional relief to the joint judgment debtor who may pay more than his proportionate share of the judgment, and provides that a person so paying or contributing more than his share is entitled to the benefit of the judgment to enforce contribution or repayment, if within ten days after the payment he file with the clerk of the court where the judgment is rendered a notice of his payment and claim to contribution or repayment, and that upon the filing of such notice the clerk must make an entry thereof in the margin of the docket.

2. When application is made to the court for an order directing an execution to issue, the court may enter an order directing an execution to issue; but the court has no authority to enter a judgment against the judgment debtor for the proportionate part of the judgment he should pay.

3. Under the provisions of sec. 4353, Rev. Codes, the court may grant any relief consistent with the case made by the complaint and embraced within the issues.

4. Held, that the case made by the complaint in this action was for judgment against the defendant Stufflebeam for one-half of the amount paid by his codefendant Dunn in satisfaction of the Lindsay judgment.

5. Held, that the trial court did not, under the provisions of sec. 4499, have authority to enter judgment in the proceedings thereunder and that it did not attempt to do so.

6. The provisions of said sec. 4499 for contribution give additional relief, and are cumulative in that they give the party paying the benefit of the judgment to enforce contribution, and on compliance with such provisions he may have execution to enforce payment of the porportionate part of the judgment indebtedness from his codefendant.

7. Proceedings under that section will not bar an action to recover judgment against a joint judgment debtor who has failed to pay his proportionate share of the judgment, where the party entitled thereto has failed to compel his codefendant to pay his proportionate share of the judgment under the provisions of said section.

(Syllabus by the court.)

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Alfred Budge, Presiding Judge.

Action for contribution by one joint judgment debtor against another for his proportionate share of the judgment. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs in favor of respondent.

John W Jones, for Appellant.

"An action to recover the amount of a judgment, with interest, in which a summons is issued and served as on a money demand, is an action on a judgment and not to revive it." (Mawhinney v. Doane, 40 Kan. 681, 20 P. 488.) The plaintiff and respondent has declared upon the judgment of October 24, 1901, and not upon the original demand. (Anderson v. Mayers, 50 Cal. 525; Krower v Reynolds, 99 N.Y. 245, 1 N.E. 775.)

The respondent having brought an action at law upon a judgment against the appellant, the authorities are many and uniform to the effect that the defendant may interpose any defense to the action which shows that the court which rendered the judgment was without jurisdiction of the person of the defendant or the subject matter of the action, or any defense showing that such judgment is illegal and void.

Want of jurisdiction may be shown in action on judgment, where the record recites the jurisdictional facts, as well as where the record is silent. (Rape v. Heaton, 9 Wis. 328, 76 Am. Dec. 269; 23 Cyc. 1512.)

A direct action at law could have been brought by Dunn against Stufflebeam at any time after he had paid more than his proportion of the judgment. He, however, sought to proceed under sec. 4499, and upon whether or not he complied with all its terms and conditions depends the validity of said judgment for contribution and his right to recover here. Where proceedings are statutory, the course pointed out by the statute must be strictly pursued. (Davis v. Heimbach, 75 Cal. 261, 17 P. 199; Clark v. Austin, 96 Cal. 283, 31 P. 293.)

Sec. 709, Code Civ. Proc. of California, construed in the latter case is identical with sec. 4499, Code Civ. Proc. of Idaho.

Hansbrough & Gagon, for Respondent.

The court having had jurisdiction of the parties and the subject matter of action by notice and also by defendant appellant's appearance, it is conclusive against him. (23 Cyc. 1215 and cases cited; Carpentier v. City of Oakland, 30 Cal. 440.)

SULLIVAN, C. J., STEWART, J. Stewart, Ailshie, JJ., and Sullivan, C. J., concurring.

SULLIVAN, C. J.

OPINION

This is an action to obtain a judgment for contribution from plaintiff's joint judgment debtor. It appears from the record that John Lindsay, as guardian of Charles, Belle and Ella Burgess, minors, on May 15, 1901, obtained judgment for the sum of $ 6,709.85, in the district court of Bingham county, against Dunn, the respondent, and Stufflebeam, the appellant, jointly, as defendants, on a certain surety bond of one Charles Bunting, who was at one time guardian of said minors and who defaulted. Thereafter the plaintiff paid said judgment as follows:

Between May 16, 1897, and Dec. 7, 1899

$ 950.15

On June 17, 1901

3,730.05

On October 9, 1901

3,085.45

Making a total of

7,785.65

Less

50.00

Paid by Stufflebeam, leaving the total as

paid by the plaintiff

7,735.65

One-half of which is

$ 3,867.82

It appears from the complaint that the plaintiff, Dunn, after paying said judgment in full, undertook under the provisions of sec. 4499, Rev. Codes, to compel his cosurety and cojudgment debtor to contribute his one-half toward the payment of said sum so paid by him, and filed with the clerk of the court where said judgment was rendered notice of his payment and claim to contribution or repayment from his said codefendant; and under the provisions of said section, upon the filing of said notice, the clerk made an entry thereof in the margin of the docket. Said notice and claim was dated October 12, 1901. Thereafter, on October 15, 1901, the said Dunn filed with the clerk of said court a motion whereby he moved the court for an order directing execution to issue in his favor and against said Stufflebeam for the said sum of $ 3,867.82. The hearing was noticed for October 21, 1901, and notice was not served on the defendant until the 20th of October, or one day before the hearing was to take place. However, the hearing did not take place until October 24, 1901, and on that day the matter was heard and the court dismissed said proceeding as to the item of $ 970.15, and ordered execution against the property of the defendant Stufflebeam for the sum of $ 3,407.75, and in that order the court stated, among other things, as follows:

"It is further ordered that execution issue herein against the property of the defendant W. G. Stufflebeam and in favor of the defendant Henry Dunn for the sum of $ 3,407.75, the same having been in open court conceded and agreed to be the proportion which said Stufflebeam owes upon said judgment and being the amount hereby found and adjudged to be due from said Stufflebeam to said Dunn by way of contribution under section 4499 of the Revised Statutes aforesaid.

"Done in open district court this 24th day of October, 1901."

It appears that nothing was recovered from the defendant Stufflebeam under the execution issued in pursuance of that order, and on February 5, 1904, this action was begun. The complaint contains a detailed statement of the recovery of said judgment of May 15, 1901, the payment thereof by plaintiff Dunn, the efforts that he had made to recover one-half thereof from his cosurety and cojudgment debtor, Stufflebeam, under the provisions of said sec. 4499, his failure to recover anything, and prays as follows:

"Wherefore plaintiff prays that said judgment be renewed in favor of the plaintiff for the sum of $ 3,407.75, together with the legal rate of interest thereon from the 25th day of October, 1901, and that said judgment be declared a lien upon the property of the defendant William G. Stufflebeam, and for the costs of this action and for such other and further relief as may be just and proper."

It appears that an amended answer was filed by Stufflebeam to said complaint, which admits the rendition of said judgment of May 15, 1901, and the payment of the same by Dunn, but denies that he (Stufflebeam) was served with a notice of said motion five days prior to the date fixed therein for the hearing, and avers that the court had no jurisdiction to make the order for the issuance of the execution under the provisions of said sec. 4499. Appellant's defense was based entirely on want of jurisdiction of the court to make the order for the issuance of...