Hopewell v. Kerr
| Decision Date | 02 January 1894 |
| Docket Number | 796 |
| Citation | 36 N.E. 48,9 Ind.App. 11 |
| Parties | HOPEWELL, ADMINISTRATOR, v. KERR |
| Court | Indiana Appellate Court |
From the Monroe Circuit Court.
J. H Louden and T. J. Louden, for appellant.
R. A Fulk and E. Corr, for appellee.
The claim which forms the basis of this action was filed in the court below, as provided by statute, on April 12, 1892, and is in the words following:
Proper affidavit, in due form, was attached.
The six years' statute of limitations was pleaded as a defense in the third paragraph of the answer.
As to requirements of such plea see section 298, R. S. 1881, and Epperson v. Hostetter, Admr., 95 Ind. 583.
See also, in this connection, section 391, Elliott's Supp.; Zeller v. Griffith, Admr., 89 Ind. 80; Castetter, Admr., v. State, ex rel., 112 Ind. 445, 14 N.E. 388.
Judgment was rendered against the estate for thirteen hundred and sixty-four dollars.
The overruling of a demurrer to the complaint and the sustaining of a demurrer to the third paragraph of the answer constitute the foundation for the assignment of errors on which appellant relies.
It is not alleged in what court, if any, the judgment was rendered. The pleader has not shown whether the court was within this State, nor whether the court had jurisdiction of the parties or the subject-matter. Therefore, it is urged by counsel for appellant that the complaint is fatally defective, and in support of their contention they cite Brown v. Eaton, 98 Ind. 591, and section 369, R. S. 1881.
The position is not tenable, and the authorities cited are not in point. This is not an action founded upon the judgment. The remedy sought is to recover on the implied promise growing out of the payment of the judgment by the surety. On this theory, the complaint is sufficient to withstand the demurrer. Section 385, Elliott's Supp.; Knight, Admr., v. Knight, 6 Ind.App. 268, 33 N.E. 456.
A motion to have made the claim more specific in several respects would doubtless have been well taken, but there was no error in overruling the demurrer thereto.
The next question which is presented for our consideration is whether the court erred in sustaining the demurrer to the third paragraph of the answer. Counsel for appellant insist that the right of action is governed by the statute of limitations applicable to accounts, which is six years, and rely on Wood on Limitation of Actions, p. 322, and Lilly v. Dunn, Admr., 96 Ind. 220.
Counsel for appellee contend that when the debt has been reduced to judgment in favor of the creditor, against the principal and surety, and has been paid by the surety, section 1214, R. S. 1881, controls, and that the authorities cited by counsel for appellant have no bearing on the question.
If the claim or complaint proceeded on the theory that, by reason of the payment of the judgment by the surety, he had become subrogated to the rights of the judgment plaintiff in the judgment against Alexander, we have not considered, and are not prepared to say, what our conclusions would be as to the sufficiency of the answer. So far as the question under consideration is concerned, the case, as it is presented to us, is analogous to Lilly v. Dunn, Admr., supra.
In that case, judgments had been rendered against May as principal and Dunn as surety. Dunn's administrator, after his death, instituted suit to foreclose an indemnifying mortgage which had...
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