Kimball v. Whitney

• Decision Date: 10 December 1860
• Citation: 15 Ind. 280
• Parties: Kimball and Others v. Whitney and Others
• Court: Indiana Supreme Court

15 Ind. 280

Kimball and Others v. Whitney and Others

Supreme Court of Indiana

December 10, 1860

APPEAL from the La Grange Circuit Court.

The judgment, as to Collins, is reversed, with costs, with leave to the defendants to plead; otherwise, it is affirmed, at the costs of the other appellants.

J. B Howe, for appellants.

(1.) Counsel for appellants cited the following authorities Hamersly v. Lambert, 2 Johns. Ch. R. 509; Devaynes v. Noble 1 Mer. R. 529; 2 Russ. & Mylne, 495; Story's Eq Jur., § 676.

A. Ellison, for appellees.

(2.) Counsel for appellees: Equity will not aid a creditor to subject the real estate of an intestate, where the heirs and representatives are non-residents, and where no letters of administration have been taken out in this State. The creditor has a complete remedy at law. Bustard v. Dabney, 4 Ohio, (Ham.) 68.

OPINION

Worden, J.

Bill in chancery filed by Kimball, on behalf of himself and such others as might come in and make themselves parties, against the heirs of Michael T. Whitney, deceased. The case has once before been in this Court, when a decree obtained below was reversed. The unknown heirs of Whitney v. Kimball, 4 Ind. 546.

When the cause was remanded to the Court below, the pleadings were amended, and new parties came in as plaintiffs. The object of the suit was to reach some property which belonged to Michael T. Whitney, in his lifetime, and now in the hands of his heirs, and apply it to the satisfaction of claims due the plaintiffs from said Michael T. Whitney and Horace Thatcher, the latter of whom had become bankrupt. No letters of administration had been taken out upon the estate of Whitney, deceased.

Henry P., and Charles Corlies came in under the bill, and set up a claim in their favor, on a judgment rendered against Whitney and Thatcher in the Court of Common Pleas of Lucas county, Ohio.

Samuel L. Collins also set up a claim upon a note made by Thatcher and Whitney, payable to S. L. Collins & Co., for $ 984 86/100, dated July 21, 1837, and alleged to have been sold and transferred by S. L. Collins & Co., to said Samuel L. Collins.

Alfred, William H., and Edward Willis, also set up a claim in their favor, upon a judgment recovered by them against Whitney and Thatcher, in the Court of Common Pleas of Lucas county, Ohio, on April 30, 1838.

The defendants, heirs of Michael T. Whitney, deceased, appeared and answered. The cause was tried by a jury, who found for the defendants, except as to the claim of the Willises, and for them the amount of their claim. The plaintiff moved for a new trial, but the motion was overruled, and judgment entered on the verdict.

The plaintiffs below appeal, and assign errors upon the rulings of the Court below, and the appellees assign cross errors in respect to the claim of the Willises.

The cross errors thus assigned may be first disposed of. It appears that the defendants pleaded the statute of limitations of the State of Ohio to the claims set up, and that on motion of the plaintiffs, the plea was rejected and stricken from the files, on the ground that it was filed too late. The bill of exceptions shows the plea to have been filed at the first calling of the cause after the complaint, to which it was pleaded, was filed. This ruling can not be sustained. As to Collins, to whose claim the plea was applicable, the ruling should be set aside. Whether as to his claim the plea was valid, we, of course, do not decide. The claim of the Willises, we have seen, was founded upon a judgment, and the plea filed was wholly inapplicable to the case made by them. It sets out a statute of Ohio, which limits an action upon "a specialty, or any agreement, contract, or promise in writing," to fifteen years, but contains no limitation of actions upon judgments.

The term "specialty," employed in the statute, does not embrace a judgment. Says Blackstone: "A debt of record is a sum of money which appears to be due by the evidence of a Court of record." "Debts by specialty, or special contract, are such whereby a sum of money becomes, or is acknowledged to be, due, by deed or instrument under seal." 2 Black. Com. 465.

The plea filed being wholly irrelevant to the case made by the Willises, as to them it might be properly rejected on motion. Evans v. Shoemaker, 2 Blackf. 237. In respect to the claim of the Willises, the rejection of the plea did the defendants no harm, although placed upon wrong ground; therefore the judgment in their favor can not be reversed.

The defendants also insist that the Court below, as a court of equity, had no jurisdiction to hear and determine the matters involved. This point was decided when the case was here before, and we see no good reason for changing the conclusion then arrived at.

We will now turn to the errors assigned by the appellants. These are, that the Court erred in giving and refusing instructions, and in overruling the motion for a new trial. The record informs us, that upon the jury being empanneled and sworn, the plaintiffs, Kimball and Henry P., and Charles Corlies, withdrew their claims, respectively, from the consideration of the jury; and they offered no evidence. There is, therefore, no ground for reversing the judgment as to them.

On the trial of the cause, as to Collins and the Willises, the Court gave to the jury the following instructions, to which exception was taken by plaintiffs, viz.: "It was necessary for the plaintiffs to make use of some diligence in pursuing Thatcher, the survivor of Whitney, and if you find that five years had elapsed after the death of Whitney, prior to the bankruptcy of Thatcher, it is an inexcusable negligence on the part of the plaintiffs, and may be considered in determining the matters in issue; and you may even consider four years in determining the plaintiffs' right to recover. If the jury find that there is no evidence of assignment of the note of S. L. Collins & Co. to the plaintiff, he can not recover."

The first branch of this charge is undoubtedly wrong. We understand the law to be, that upon the death of one of two joint debtors, the creditor has the right to collect his...