Ketelsen v. Stilz

• Decision Date: 16 February 1916
• Docket Number: 22,942
• Citation: 111 N.E. 423,184 Ind. 702
• Parties: Ketelsen v. Stilz
• Court: Indiana Supreme Court

111 N.E. 423

184 Ind. 702

Ketelsen v. Stilz

No. 22,942

Supreme Court of Indiana

February 16, 1916

Rehearing Denied May 12, 1916.

From Superior Court of Marion County (88,419); Charles J. Orbison Judge.

Action by Anna Ketelsen against Fred D. Stilz and others. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901 p. 590.)

Reversed.

William E. Jeffrey, L. Ert Slack and E. E. McFerren, for appellant.

Hanna & Daily for appellees.

Lairy J. Cox, J., dissents.

OPINION

Lairy, J.

Appellant brought this action to recover damages resulting to her from an exchange of a piece of real estate for real estate owned by one McCleay, which damages were alleged to have been occasioned by the fraud of appellees. It appears from the allegations of the complaint that appellees were real estate agents and that as such they sold to appellant a piece of property assuring her at the time that in case she desired to dispose of it they would assist her without charge. Appellant afterward consulted appellees with reference to the disposition of the property and was informed that they represented McCleay who owned a desirable rental property, and they advised her to exchange her property for that owned by McCleay. Appellant alleges that she made the exchange upon the advice of appellees, the negotiations being conducted by them, and that during these negotiations they made false and fraudulent representations as to the character, condition and value of the McCleay property, which resulted in damage to appellant, and which form the basis of this action. The sufficiency of the complaint is not questioned on appeal. Appellees filed an affirmative answer to the complaint, which was held good as against a demurrer for want of facts. To this answer appellant filed an affirmative reply to which a demurrer was addressed by appellees and sustained by the court. The rulings of the court in passing upon these demurrers are assigned as error.

Only a single question is presented. From these pleadings, it appears that prior to the commencement of this action appellant sued McCleay, the owner of the real estate for which she exchanged her property, and recovered a judgment based upon fraudulent representations made by him in the same transaction with reference to the exchange of the same property. It further appears that appellant caused an execution to be issued against McCleay on this judgment, which execution was returned nulla bona. Under the facts thus shown, appellees take the position that McCleay was a joint tortfeasor with them and that the recovery of a judgment against him for the tort for which all were jointly and severally liable and the issue of an execution thereon, operated to release the other tortfeasors from liability. By its rulings, the trial court sustained the position of appellees. Appellant takes the position that she is entitled to one satisfaction of her demand, that she has a right to sue all, either jointly or separately, and that nothing short of a satisfaction, release or discharge of her claim in favor of one of the joint tortfeasors will operate as a release to the others.

It seems to be well-settled law in England since the case of Brown v. Wooton (1606), 4 Croke's Rep. 73, Yelv. 67, that a judgment against one tortfeasor may be pleaded in bar of an action for the same cause brought against another as a joint tortfeasor, without averring satisfaction of the judgment. Buckland v. Johnson (1854), 15 C. B. 145, 80 C. L. Rep. 145; Brimsmead v. Harrison (1872), 7 L. R. C. P. D. 547, 41 L. J. C. P. N. S. 190.

Appellees assert that the doctrine announced in Brown v. Wooton, supra, was the common law of England at the time of the settlement of Jamestown, that our code adopts the common law of England at that date, as the common law of Indiana and that the courts of this State are thereby bound to follow the law as announced in that case. § 236 Burns 1914, § 236 R. S. 1881. While it is true that the section of the statute pointed out makes the common law of England the common law of Indiana, and that the case of Brown v. Wooton, supra, declares the law to be in accordance with the principle asserted by appellees, we can not subscribe to the proposition that we are bound to accept the rule announced by the decision relied on and the cases cited in support thereof as being a part of the common law as the term "common law of England" is used in the statute referred to. It is appellees' position that by virtue of the statute all rules of the common law of England in the year 1607, are, except as otherwise provided, in full force in this State, and that in determining what such rules were we must look to the ruling decisions rendered by the English courts up to that time. Appellees misinterpret the statute in question as to the meaning of the term common law as therein used, and also as to the application of the specific period therein designated to parts of the section other than that to which it was meant to be applied. The section reads in part as follows: "The law governing this State is declared to be * * * Fourth. The common law of England, and statutes of the British Parliament made in aid thereof prior to the reign of James the First (excepting certain enactments) and which are of a general nature, not local to that kingdom * * * ." As viewed by this court, it was not the purpose of the legislature by this section of the statute to adopt the rules of the common law as announced and applied by the courts of England prior to 1607, but that the purpose was to adopt the general principles of the common law which underlie and control all rules of decision throughout all time, as the same were affected by the acts of the British Parliament passed in aid thereof prior to the time mentioned. The statute was declaratory in its nature, Indiana being carved out of that portion of America settled by the English colonists who brought with them the common law at the time the settlement was established, and the statutes of Parliament in aid of the common law were to be distinguished from those passed in derogation of it. Such acts were to be distinguished also from the acts of the British Parliament passed after the physical separation from the mother country, after which time courts were to look particularly to American legislation and to the reports of American courts for improvements and modifications of the rules of the common law.

The common law of England was derived from the universal usage and custom of the early English people, and is a system of jurisprudence founded upon principles of justice as it was conceived and administered by the English courts of law, in contradistinction to the methods of administering justice employed by the courts of equity, and that system of jurisprudence which formed the basis of the Roman or civil law. From this common-law system, and from the usages customs and maxims upon which it is founded, innumerable rules and principles emanated, as the courts from time to time declared what they understood to be the correct law applicable to the matter before them and such law was determined by a system of reasoning and of administering justice consistent with the universal usages, customs and institutions of the English people. The common law grew to be a system of applying to litigated instances, just, reasonable and consistent rules of decision, suitable to the genius of the people and to their social, political and economic conditions and the system once established has never changed. The rules so deduced from this system, however, were continually changing and expanding with the progress of society in the application of this system to more diversified circumstances and under more advanced periods. The common law by its own principles adapted itself to varying conditions and modified its own rules so as to serve the ends of justice as prompted by a course of reasoning which was guided by these generally accepted truths. One of its oldest maxims was that where the reason of a rule ceased, the rule also ceased, and it logically followed that when it occurred to the courts that a particular rule had...