Hatfield v. Mahoney

• Decision Date: 08 February 1907
• Docket Number: No. 5,767.,5,767.
• Citation: 79 N.E. 1086,39 Ind.App. 499
• Parties: HATFIELD et al. v. MAHONEY, Sheriff, et al.
• Court: Indiana Appellate Court

39 Ind.App. 499

79 N.E. 1086

HATFIELD et al.

v.MAHONEY, Sheriff, et al.

No. 5,767.

Appellate Court of Indiana, Division No. 1.

Feb. 8, 1907.

On petition for rehearing. Petition overruled.

For former opinion, see 79 N. E. 408.

WATSON, J.

The appellees' counsel filed their petition for rehearing herein and assigned five causes therefor, but they may be properly stated as follows: First, that the court erred in holding that the appellants are entitled to have the allowance of a general claim in their favor against the estate of appellee Highland set off against the judgment in rem; second, the court erred in holding that the appellants were entitled to an injunction to stop the sale by the sheriff of their real estate upon the appellee Highland's estate's judgment.

As to the first cause we are confronted at the very threshold, in the consideration of this case, with the statute set out in the original opinion herein, which says in plain words that, when cross-demands have existed between persons, under such circumstances that one could be pleaded as a counterclaim or set-off to an action between the parties, neither can be deprived of the benefit thereof by death or assignment. In the case at bar Highland bought the claim, in his lifetime, from Lizzie C. Chenoweth, but it was not assigned of record until after his death. The appellants had a claim pending in the Huntington circuit court against John Highland at the time of his death, which was afterwards found to be a valid claim by the court, and a judgment awarded against his estate in favor of the appellants. It cannot be contended that the claim did not exist during the lifetime of Highland, or, in other words, at the time of his death there did not exist between the parties cross-demands. Highland had bought the judgment, but the same had not been assigned of record. The appellants had a suit pending against Highland. The fact that it had not been reduced to a judgment makes no difference. It was a valid claim against him and is now against his estate. Schoonover, Adm'r, v. Quick, 17 Ind. 196, 197;Porter v. Roseman, 165 Ind. 255, 259, 74 N. E. 1105; Morrison v. Jewell, 34 Me. 146; Am. and Eng. Ency. of Law (2d Ed.) vol. 25, p. 533. Courts do not do or require idle things. If John Highland were alive, could it be said that the court would require him to pay the appellants, and in turn the appellants to pay John Highland? We think not. The law does not enlarge the rights of an administrator beyond the rights of the...