Hedges v. Mehring

• Decision Date: 30 March 1921
• Docket Number: 10,422
• Citation: 130 N.E. 423,76 Ind.App. 496
• Parties: HEDGES v. MEHRING ET AL
• Court: Indiana Appellate Court

130 N.E. 423

76 Ind.App. 496

HEDGES v. MEHRING ET AL

No. 10,422

Court of Appeals of Indiana

March 30, 1921

Rehearing denied June 1, 1921.

Transfer denied October 28, 1921.

From Marion Circuit Court (23,643); Louis B. Ewbank, Judge.

Action by Jennie R. Hedges against Orval E. Mehring and others. From a judgment for defendants, the plaintiff appeals.

Affirmed.

William F. Elliott, H. J. Everett, Charles Remster, H. H. Hornbrook Albert P. Smith and Paul Y. Davis, for appellant.

C. E. Fenstermacher, for appellees.

NICHOLS J. Enloe, J., dissents.

OPINION

NICHOLS, J.

This is the second appeal of this case, the opinion in the first appeal appearing in 65 Ind.App. 586, 115 N.E. 433. After the case was remanded, it was again submitted to the court for trial, which again resulted in a finding and judgment for appellees. There was a motion for a new trial, which motion, based on the decision of the court being contrary to law, was overruled. This is the only error relied upon.

If appellant prevails in this appeal, it must be because the record is in such condition, that, as the maker of a promissory note negotiable under the law merchant, she can, after paying the same, enforce contribution against appellees as subsequent regular indorsers. But contribution rests in equity, and is based upon natural justice. It applies to any relation where equity between the parties is equality of burden, and one of the parties concerned has discharged more than his share of the common burden. Norris v. Churchill (1898), 20 Ind.App. 668, 51 N.E. 104. It is an unyielding principle of equity that the action of contribution shall never be used to enforce an unjust and inequitable demand. Brandt, Surety and Guaranty § 208; Bulkeley v. House (1892), 62 Conn. 459, 26 A. 352, 21 L. R. A. 247. These principles must be of controlling force in determining the rights of the parties. There is no contention by appellant that as the maker of the note she is justly entitled to recover from appellees, the indorsers. Without regard to the equities, so far as the record shows, she bases her right to recover upon the judgment of the Hancock Circuit Court, which, as we shall hereinafter undertake to show, was, because of the condition of the record in the former appeal, misinterpreted by this court.

The complaint in the Hancock Circuit Court, upon which the original judgment here involved was rendered, declared upon a negotiable note executed by appellant and indorsed subsequently by appellees in due course, with averments that appellant was maker and appellees indorsers. With a verdict for the plaintiff, the judgment thereon as rendered in favor of plaintiff was the only judgment that could have been rendered, regardless of any other pleadings filed therein. It follows that the judgment could have been rendered as it was without deciding as to the relations that the maker and indorsers bore to each other. Such a judgment is not conclusive as to their rights between themselves, though it was, in favor of plaintiff, against all of them alike. Dygert v. Dygert (1891), 4 Ind.App. 276, 29 N.E. 490. Bulkeley v. House, supra. The rule is well stated in Paul v. Barnbrook (1914), 58 Ind.App. 607, 106 N.E. 425, as follows: "The judgment of a court is only presumptively conclusive when it appears that the suit and the issues were of such a character that the judgment relied upon to show former adjudication of the questions involved in the issues could not have been rendered without deciding the particular questions again presented by the issues of the case under consideration." If it were to be conceded that the issue of suretyship was submitted to the jury and a verdict returned thereon, it clearly appears that the judgment did not cover the issue of suretyship, and therefore the rule of res adjudicata does not apply, for there was no adjudication of the issue of suretyship. To sustain this holding, we cite Zimmerman v. Gaumer (1899), 152 Ind. 552, 53 N.E. 829, quoting from p. 564, as follows: "While the jury found that the appellee Robert G. Pasley was surety only on the note and mortgage upon which the Funk judgment and decree were recovered, and the other persons against whom said judgment and decree were rendered were principals, yet said relation was not shown by that judgment. * * * said judgment was joint against said Pasley and the other judgment defendants. Therefore, when appellee Robert G. Pasley took the assignment of the Funk judgment and decree to himself, he could not, * * * take an execution or a copy of the decree thereon, until there had been a final adjudication that he was the surety of the other judgment defendants in said judgment, and an order that execution issue thereon." See also, Yelton v. Slinkard (1882), 85 Ind. 190; Oglebay v. Todd (1905), 166 Ind. 250, 76 N.E. 238; 7 Ency. of Evidence 832. At the time the judgment of the Hancock Circuit Court was rendered, the right to contribution had not accrued, and therefore it could not at that time have been adjudicated. Terre Haute, etc., R. Co. v. State (1902), 159 Ind. 438, 65 N.E. 401; 13 C. J. 823.

Appellant has cited a long list of authorities sustaining the proposition that it is the judgment itself which constitutes the adjudication, that estoppel by adjudication resides in the judgment itself, and that it is not the verdict of the jury that concludes the parties, but the judgment rendered upon such verdict. To this contention we most readily agree, but an examination of the judgment here involved fails to show any determination of rights between the judgment defendants. It is simply a judgment in favor of the plaintiff on his complaint against all of the defendants, nothing more.

It is contended that the decision in the first appeal becomes the law of the case thereafter, and therefore that the court in that decision having held that appellees' rights had been once tried and determined, and that they cannot be litigated again, such holding is now binding upon this court, right or wrong. We are not unmindful of the rule of the law of the case, but its application depends upon whether the interpretation of the facts of the case was in harmony with the facts as presented in this appeal. The court in the former appeal rightly stated the rule that an appellate court will look to the whole record to determine the theory upon which a case was tried and disposed of in the lower court. But the Appellate...