Ervin v. State ex rel. Walley

• Decision Date: 19 November 1897
• Citation: 48 N.E. 249,150 Ind. 332
• Parties: ERVIN et al. v. STATE ex rel. WALLEY.
• Court: Indiana Supreme Court

150 Ind. 332

48 N.E. 249

ERVIN et al.

v. STATE ex rel.WALLEY.¹

Supreme Court of Indiana.

Nov. 19, 1897.

Appeal from circuit court, Delaware county; George W. Koons, Judge.

Action by the state, on the relation of Nellie A. Walley, against John R. Ervin and another. Judgment for plaintiff. Defendants appeal. Reversed.Ryan & Thompson and Warner & Brady, for appellants. J. N. Templer & Son, M. E. Forkner, and J. G. Leffler, for appellee.

McCABE, C. J.

The appellee sued the appellants to recover money alleged to have been lost by William A. Walley, the relator's husband, to the appellees, by betting on a game called “faro,” under sections 6676 and 6678, Rev. St. 1894 (sections 4951, 4953, Rev. St. 1881). The complaint was in five paragraphs, and the court overruled a several demurrer by the defendants to each paragraph, for want of sufficient facts, and that the plaintiff had no capacity to sue. A trial of the issues resulted in a verdict and judgment for $5,414.50, over appellants' several and joint motions for a new trial. The court also overruled appellants' motion to modify the judgment. The errors assigned call in question these several rulings, and also call in question the sufficiency of the complaint.

The first question presented in support of the alleged insufficiency of each paragraph of the complaint is that the statute on which the action is founded is unconstitutional. If this charge against the statute is true, the people of the state are a little late in discovering it, because the statute has been substantially in force for over half a century, and has been several times under consideration by this court in actions founded on it appealed here. The second section of the act, as its sections are numbered in the revision of 1852, being section 6676, Rev. St. 1894 (section 4951, Rev. St. 1881), reads thus: “If any person by betting on any game, or betting on the hands or sides of such as play at any game, shall lose to any one any money, or valuable thing, and shall pay or deliver the same, or any part thereof, the person so losing and paying or delivering the same, may, within six months next following, recover the money or other valuable thing so lost and paid or delivered, or any part thereof, with costs of suit, by action founded on this act, to be prosecuted in any court having jurisdiction thereof.” The fourth section, old number, being section 6678, Rev. St. 1894 (section 4953, Rev. St. 1881), reads thus: “In case the party so losing such money or other thing aforesaid shall not, within the time aforesaid, bona fide sue and with effect prosecute for the money or thing so lost and paid or delivered, it shall be the duty of the prosecuting attorney, on information filed with him by such action as aforesaid, to sue for and recover the same in the name of the state, with costs of suit, against any such winner, for the benefit of the wife or minor children, or either of them, if living, in the order herein named, of the person losing the same; and in case there shall be no such wife or minor children, then for the benefit of the common schools.” It is contended that this statute authorizes the property of one man to be taken by the courts, and conferred on another. It is contended that, in case the loser fails to prosecute and recover the lost money, it then becomes the property of the winner, and that it cannot be taken from him, and given to the wife or children of the loser, or to the common schools, without just compensation; that the statute, in so far as it authorizes a recovery for the benefit of the wife, children, or common schools, violates section 21 of article 1 of the state constitution, providing that “no man's property shall be taken without just compensation.” Rev. St. 1894, § 66 (Rev. St. 1881, § 66). But appellants' counsel are in error in supposing that title to money or property lost at gaming ever vests in the winner. It is true, without the aid of this statute, the loser cannot recover back money or other property which has been paid or delivered on gambling contracts or a bet, because it was so lost in a transaction which is in violation of the criminal law of the state, and, the parties being in part delicto, the law will not aid either of them. 8 Am. & Eng. Enc. Law, 1021, and notes. Most, if not all, of the states, have statutes of a similar character, and none of them have ever been held unconstitutional. 8 Am. & Eng. Enc. Law, supra.

It is also contended that the loser has a title to the lost money or property, and to take it from him, and confer it on his wife or children, would be taking his property without just compensation, in violation of the constitutional provision mentioned. But it is not true that it takes his property without compensation. He has lost his property, and it has passed beyond his reach, by his failure to sue to recover it within six months. Nor do we think there is any just or reasonable ground for holding the statute unconstitutional.

It is next contended that the demurrers ought to have been sustained, because the action is not prosecuted in the name of the real party in interest, namely, Nellie A. Walley, but is prosecuted in the name of the state. It is conceded that the statute on which the action is founded authorizes the prosecution of the action in the name of the state for the benefit of the wife of the loser under certain circumstances; but it is contended that such statute was passed prior to the Code, and that the Code makes a different provision in relation thereto, and must be deemed the last expression of the legislative will, and controlling in this respect. Conceding, without deciding, that such was the order of passage of the two statutes, and that the last act would have the effect to modify the first in so far as inconsistent therewith, we do not think that there was any such inconsistency. Section 251, Rev. St. 1894 (section 251, Rev. St. 1881), provides that “every action must be prosecuted in the name of the real party in interest, except as otherwise provided in the next section.” The next section provides that “an executor, administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted.” The state is authorized by the statute in question to sue for the benefit of another, and the state is within the meaning of the last section of the Code if the word “person,” as used therein, may be held to include the state. Among the rules for the construction of the Code, it is provided, in section 1309, Rev. St. 1894 (section 1285, Rev. St. 1881), that “the word ‘person’ extends to bodies politic and corporate.” Webster defines the words “body politic” to be “the collective body of a nation or state as politically organized, or as exercising political functions; also a corporation.” Therefore we hold that the Code does not require the action to be brought in the name of the real party in interest, where, as here, a person-the state-is expressly authorized by statute to sue without joining the person for whose benefit the action is prosecuted.

The next ground taken against the sufficiency of the several paragraphs of the complaint is that each paragraph shows that more than six months had elapsed since the money sued for had been lost at the commencement of the action. It is contended on behalf of appellants that the action the right of which is created by the statute must be commenced within six months next following the losing and paying or delivering the money or other valuable thing, and that, after such six months expire, the right of action is gone, not only as to the loser, but as to the state as well. It is undoubtedly true that the right of action in the loser is gone at the expiration of six months next after the payment or delivery of the thing lost, by the express terms of the statute. But it is not so as to the state. The state's right of action on the statute never accrues until the loser's right thereto expires; and his right does not expire until six months after the payment or delivery of the thing lost in the bet or on the game. The state cannot begin the action as long as the loser has the right to sue, and that right continues in the loser until the last moment of the six months has expired. Then, and not till then, does the right to sue accrue to the state. “In case the loser shall not, within the time aforesaid [which is six months], bona fide sue,” etc., “it shall be the duty of the prosecuting attorney, on information filed by such action as aforesaid, to sue,” etc. Appellants contend that the words “such action as aforesaid” refer to the action authorized by the first section above quoted to be prosecuted by the loser, and that the second section quoted means to clothe the state with the same right of action created by the previous section in the loser, and that right, by the express terms of the section, subsisted only six months next following the payment or delivery of the money or other valuable thing so lost by a bet on a game. Undoubtedly, the words “by such action as aforesaid” refer to the action the right to which is created in the previous section in favor of the loser. It is sufficiently clear to leave no doubt that the same right of action thus created in the loser should at some time pass from him, and vest in the state, for the benefit of the wife and children, or, if there be no wife or children, the common schools, in the order named. But it could not have been intended to confer on and vest in the state the identical right of action first vested in the loser, both in form and substance, because that would have required the action brought by and in the name of the state, as well as that in the name of the loser, to be brought within six months next following the payment or delivery of the money or thing lost. That would bring the statute into contradiction...