Farwell v. Becker

Citation129 Ill. 261,21 N.E. 792
PartiesFARWELL et al. v. BECKER et al.
Decision Date15 June 1889
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Appeal from appellate court, First district.

MAGRUDER, J., dissenting.

Tenney, Bashford & Tenney, for appellants.

Frederic Ullman, for appellee Shirk.

Beck & Charlton and John Gibbons, for appellee Becker.

ON MOTION TO DISMISS APPEAL.

CRAIG, C. J.

The appellee Elbert W. Shirk has entered a motion to dismiss the appeal, so far as he is concerned, on the ground that the amount involved is less than $1,000, and the judgment of the appellate court is final. The bill in this case was brought against two defendants, Becker and Shirk. The facts set out in the bill, briefly stated, are that Farwell & Co., Becker, Shirk's firm, (Sherer, Shirk & Co.,) and Eisen & Co., were creditors of Ohlquist Bros., a firm doing business at Monticello and Center Point, Iowa. The firm became insolvent, and made transfers of their stock, which the creditors claimed were fraudulent, and thereupon brought attachment suits, through the same attorneys. The goods were sold under the attachment proceedings, and enough was realized to pay the claims of Farwell, Becker, and Shirk in full. Trespass suits were brought by the parties, who purchased the goods from Ohlquist Bros., against the sheriffs who made the levies, for the value of the goods, and, after considerable litigation in Iowa, judgments were recovered by the plaintiffs in both of the suits, which judgments were paid by Farwell & Co. They also paid certain costs and expenses of defending the suits, and brought this bill to compel Becker and Shirk to contribute pro rata to the payment of the amount they had paid out. The circuit court entered a money decree requiring Becker to pay complainants $5,047.75, and requiring Shirk to pay $554.74. To reverse the decrees each defendant took separate appeals to the appellate court. The appellate court reversed both decrees, and remanded the cause, with directions to dismiss the bill, (25 Ill. App. 432,) and to reverse that judgment complainants appeal to this court. We think it is plain that this court has no jurisdiction, so far as the defendant Shirk is concerned. Although two parties, Becker and Shirk, were made defendants to the bill, the action is against each defendant to enforce a separate and distinct liability. The item relied upon was separate as to each defendant, and so was the recovery. Shirk was in no manner connected with Becker as to the claim against him, nor was Becker in any manner liable as respects the claim against Shirk. Where the amount against each defendant is separate and distinct, as is the case here, the two amounts cannot be united so as to confer jurisdiction, but each must be treated as a separate suit, and, if the amount involved as to either one is not large enough to confer jurisdiction, the appeal must fall. See Paving Co. v. Mulford, 100 U. S. 147. The appeal as to appellee Shirk will be dismissed.

ON THE MERITS.

CRAIG, C. J.

Several questions have been discussed by counsel in the argument, but there is but one question of any importance presented by the record, and that is whether complainants in the original bill, appellants here, have the right to require Gerhard Becker to contribute to the payment of the judgments rendered in the district courts of Jones and Lyon counties, Iowa, and costs which the complainants had paid in consequence of the levy on the goods as the property of Ohlquist Bros. It is insisted by appellee that in the attachment and sale of the goods in Iowa the complainants and Gerhard Becker, the defendant, were all wrong-doers, and that no right of contribution exists between wrong-doers. There are cases which hold that no right of contribution exists between wrong-doers. Merryweather v. Nixan, 8 Term R. 186, may be regarded as a leading case on the subject. Nichols v. Nowling, 82 Ind. 488;Peck v. Ellis, 2 Johns. Ch. 131;Cumpston v. Lambert, 18 Ohio, 81; and Spalding v. Oakes' Adm'r, 42 Vt. 343,-hold the same doctrine. There are other cases where the same rule has been declared, but we do not think the weight of authority sustains the doctrine that no right of contribution exists between wrong-doers, as it is broadly stated in Merryweather v. Nixan. Indeed, the later English cases do not, in our opinion, sustain the doctrine as it is laid down in that case. The question arose in Adamson v. Jarvis, 4 Bing. 66, and in passing upon the question, among other things, BEST, C. J., said: ‘It was certainly decided in Merryweather v. Nixan that one wrongdoer could not sue another for contribution. Lord KENYON, however, said ‘that the decision would not affect cases of indemnity, where one man employed another to do acts not unlawful in themselves, for the purpose of asserting a right.’ This is the only decided case on the subject that is intelligible. * * * The case of Philips v. Biggs, Hardr. 164, was never decided; but the court of chancery seemed to consider the case of two sheriffs of Middlesex, where one had paid the damages in an action for an escape, and sued the other for contribution, as like the case of two joint obligors. From the inclination of the court in the last case, and from the concluding part of Lord KENYON'S judgment in Merryweather v. Nixan, and from reason, justice, and sound policy, the rule that wrong-doers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act.' What was said in the case cited was approved in a later case, (Betts v. Gibbins, 2 Adol. & E. 57.) See, also, Wooley v. Batte, 2 Car. & P. 417. Story on Partnership, § 220, after stating what is regarded as the general rule that no right of contribution is allowed by the common law between joint wrong-doers, says: ‘But the rule is to be understood according to its true sense and meaning, which is, where the tort is a known, meditated wrong, and not where the party is acting under the supposition of the entire innocence and propriety of the act, and the tort is merely one of construction or inference of law.’ Armstrong Co. v. Clarion Co., 66 Pa. St. 218, sanctions the rule announced in Story, and, after reviewing the authorities on the question, holds that, where the tort is a known, meditated wrong, contribution cannot be had, but, where the party is acting under the supposition of the entire innocence and propriety of the act, contribution may be awarded. In Bailey v. Bussing, 28 Conn. 455, a leading case on the subject, it was held: ‘The rule that there can be no...

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