Everman v. Hyman
| Decision Date | 02 February 1892 |
| Docket Number | 242 |
| Citation | 29 N.E. 1140,3 Ind.App. 459 |
| Parties | EVERMAN v. HYMAN |
| Court | Indiana Appellate Court |
From the Carroll Circuit Court.
L. D Boyd, for appellant.
This is an action of replevin, instituted by the appellant against the appellee before a justice of the peace, to obtain possession of a horse.
Before the justice judgment was in favor of the appellant. Upon appeal to the circuit court there was, over the appellant's motion for a new trial, judgment for the appellee in the following words:
"It is therefore considered and adjudged by the court that the defendant was lawfully in the possession of the property mentioned and described in plaintiff's complaint, to wit one gray horse, at the date of the commencement of said action, and was entitled to retain possession thereof; that the value of said property is one hundred dollars; that the plaintiff has the possession of said property by virtue of the writ of possession issued in this cause, and that the defendant is entitled to the return of said property within ten days herefrom, and on failure of the plaintiff to return the said property within ten days herefrom, then it is considered and adjudged by the court that the defendant shall have and recover from the plaintiff the sum of one hundred dollars, collectible with relief from valuation and appraisement laws; and that the defendant also recover from the plaintiff his costs herein laid out and expended, taxed at dollars."
A motion by the appellant for a new trial was overruled. The appellant also moved the court to modify the judgment, so that he be not required to pay the appellee one hundred dollars in default of returning the horse to the latter. This motion was overruled. The overruling of these motions has been assigned as error by the appellant.
It is shown by the record that on the 2d day of August, 1889, suit was brought by the appellee against the appellant for the recovery of a reward offered by the latter for the return of a horse stolen from the appellant and the capture of the thief. On the 1st day of November, 1889, the appellee obtained judgment against the appellant in said cause for $ 150, the full amount of the reward offered.
The present action was begun July 29th, 1889, and judgment given in favor of the appellee January 29th, 1890.
All of the proceedings in the suit to recover the reward, the evidence included, appear in the record of the case at bar.
It is the contention of counsel for the appellant, as we understand his argument, that, if the appellee found the horse after he was stolen, but refused to allow the appellant to take full and exclusive possession of the same unless the reward promised was paid, and the appellee thereafter sued the appellant and recovered judgment for the reward, he could not, after that, rightfully retain possession of the horse although the judgment was wholly unpaid.
We can not agree with this view. The appellant had offered a reward for the return of the stolen horse. The appellee found the horse, and was ready to restore it to the appellant upon the payment of the reward. As soon as the horse was found and taken possession of by the appellee a binding contract arose between the appellee and the appellant.
The appellant could not complain that the appellee was retaining possession of the horse, while he, at the same time, was declaring that he did not intend to pay the reward which he had offered, even if the horse was put into his possession. The appellant's obligation to pay was as binding as the appellee's obligation to restore. They were acts to be performed concurrently, and, if the appellant did not intend to perform his part of the contract, the appellee was not required, in our opinion, to surrender the horse, either at the time he was given judgment for the reward promised, or afterwards, until the judgment was paid.
A judgment is the conclusion of law upon the facts, and in it, therefore, is merged the cause of action, but the debt for which the judgment is rendered is not thereby paid, but is still alive as expressed and represented by the judgment.
The appellant is insisting that, because the form of his liability to the appellee has been changed from that of contract to a debt of record, he shall now be accorded a right which he did not before possess, and thus be allowed to profit by his own wrong. This the law will not allow.
Counsel for the appellant treats the possession of the horse by the appellee, prior to and at the time of the rendition of the judgment for the reward, as analogous to a pledge, and says that the right to a pledge is extinguished by the payment of the debt, or by the recovery of a judgment for the debt.
The payment of the debt by the pledgeor would certainly extinguish the right to the pledge...
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