Hunt v. Lane

• Decision Date: 05 June 1857
• Citation: 9 Ind. 236
• Parties: Hunt v. Lane, Administrator
• Court: Indiana Supreme Court

9 Ind. 236

Hunt v. Lane, Administrator

Supreme Court of Indiana

June 5, 1857

From the Dearborn Circuit Court.

The judgment is affirmed with costs.

Abram Brower, for appellant ^[1].

John Ryman, for appellee ^[2].

OPINION

Gookins J.

Complaint by Hunt against Lane, to enjoin proceedings upon an execution, to which a demurrer was sustained, and the suit dismissed. Hunt appeals.

The complaint makes the following case: That in 1837, one Overall recovered a judgment against Hunt and James H. Lane, in an action of tort, for 322 dollars and costs; that the judgment had been assigned in parts, to various persons; that an unpaid balance had been assigned to Amos Lane, the defendant's intestate, which was the part now sought to be collected; that the same was really bought with the money of James H. Lane, and for his benefit, and was in fact a payment thereof; that it was only transferred to said Amos Lane in order to keep it on foot for the purpose of collecting it from the plaintiff; that he has paid into the clerk's office one-half the amount of the judgment and costs; that at the November term, 1850, of the Dearborn Circuit Court, the defendant, as administrator of said Amos Lane, deceased, revived the judgment against said James H Lane and Hunt, for 351 dollars and 98 cents; that on the 20th of December, an execution was issued thereon, which was levied upon the property, real and personal, of said Lane. It is averred that the real estate was of sufficient value to satisfy the demand; that before the day of the sale, the plaintiff, for the purpose of keeping J. H. Lane from the payment of the judgment, and to compel Hunt to pay the same, directed the sheriff to abandon the levy, and to return the writ, which he did; that he thereupon caused an execution to be issued to the sheriff of Ohio county, where the plaintiff resided, and was threatening to cause it to be levied upon his property.

The return upon the execution alleged to have been levied, is set forth. It does not show a levy upon personal property, but shows a levy upon real estate, after which is the following: "I hereby abandon the above levy by order of Theodore Gazlay, the plaintiff's attorney,"--which order is subjoined. It directs the sheriff to relinquish the levy made upon the real estate of J. H. Lane, the said defendants having personal property subject to execution; and orders the sheriff to levy upon such personal property, in the possession of Hunt. It further appears from the return, that the execution was superseded by a writ from this Court, and that, as to J. H. Lane, it was returned by the plaintiff's order. The complaint further states that a motion has been made by the plaintiff, to set aside said execution, which was still pending.

Prayer for an injunction to restrain further proceedings upon the execution.

The demurrer assigned for cause that the complaint did not state facts sufficient to constitute a cause of action.

The appellant insists that because it is alleged that the judgment has been paid in full, the demurrer should have been overruled. But it also appears that since the money was so paid, the judgment has been revived by scire facias by the defendant in this action. It is not averred that the fact of the payment of the money by Amos Lane for J. H. Lane, and that the money used for that purpose belonged to the latter, was unknown to the present plaintiff at the time the judgment was revived; nor is any other reason given why the defense was not made in that action. By suffering that judgment to pass, he is concluded, and the allegation that the debt is paid, must be laid out of the case.

It is a general rule that there is no contribution amongst wrongdoers. Chitty on Contracts, pp. 446, 525, with references to numerous authorities, English and American, which fully sustain the text. There are exceptions to the rule--as where an illegal act is done by one in good faith, by the command of another, there the latter is bound to indemnify the former. Id. 445. The complaint in this case does not show the nature of the wrong for which Overall obtained his judgment against J. H. Lane and Hunt. It is therefore governed by the general rule; for he who would avail himself of exceptions must show himself entitled to them by proper averments. This, then, is a case in which equity will not interfere and the parties will be left to their legal rights.

The complaint shows that there is another proceeding pending to attain the same end that is sought in this action--that is, a motion to set aside the execution. In Lasselle v Moore, 1 Blackf. 226, it was held that this was the proper proceeding, and that a bill in chancery would not lie, except for the purpose of staying proceedings until the motion could be made. But it is not assigned as a ground of demurrer, that another action is pending for the same cause. 2 R. S. p. 38, sec. 50, sub-sect. 3. The only cause assigned is,...