Kreider v. Isenbice
| Decision Date | 08 February 1890 |
| Docket Number | 14,890 |
| Citation | 23 N.E. 786,123 Ind. 10 |
| Parties | Kreider v. Isenbice |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled March 20, 1890.
From the Elkhart Circuit Court.
Judgment reversed, with directions to overrule the demurrer to the second paragraph of the appellant's answer, and for further proceedings not inconsistent with this opinion.
D. N Weaver, for appellant.
H. C Dodge, for appellee.
Coffey, J. Mitchell, C. J., took no part in the decision of this cause.
The complaint in this cause avers substantially that on the 15th day of April, 1871, the appellant and the appellee executed their promissory note for the sum of three hundred dollars, with interest at the rate of ten per cent., to Daniel Hill; that appellant received all the consideration for said note, and that appellee signed said note as surety for the appellant, and not otherwise; that the said Daniel Hill endorsed said note to one John H. Baker, who endorsed the same to the firm of John H. Baker and Joseph A. S. Mitchell; that said Baker & Mitchell brought suit on said note against the appellant and the appellee in the common pleas court of Elkhart county, on the day of December, 1871, and such proceedings were had in said suit that on the 2d day of January, 1872, they recovered judgment in said court, on said note, against the appellant and the appellee in the sum of $ 363.77; that no issue was made, tried, or adjudged between the appellant and the appellee as to which of them was principal and which was surety; that on the 31st day of May, 1873, appellee paid all of said judgment, interest, and costs, said costs amounting to the sum of $ 40.00; that no part of said sum has ever been returned to, or paid by, appellant to appellee; that more than ten years have elapsed since appellee paid said judgment, interest, and costs.
Prayer that appellee be declared surety in said judgment; that he have execution thereon, collectible with ten per cent. interest from the date of the rendition of said judgment.
A demurrer to this complaint, for want of sufficient facts to constitute a cause of action, was overruled, and appellant excepted.
The appellant answered in two paragraphs, the first being a general denial.
The second paragraph is as follows: "And for second and further answer defendant says, that the alleged cause of action, in plaintiff's complaint mentioned, did not accrue within six years last passed before the commencement of this suit; and that said alleged cause of action did not accrue within the fifteen years last passed before the commencement of this suit."
The court sustained a demurrer to this answer, and the appellant excepted.
Upon a trial of the cause the court found that the appellee was surety for the appellant in the judgment mentioned in the complaint, and entered judgment accordingly, and awarded the appellee execution on said judgment.
The assignment of error calls in question the correctness of the ruling of the circuit court in overruling the demurrer to the complaint, and in sustaining the demurrer to the answer above set out.
The only question involved in the case relates to the statute of limitations.
It is contended by the appellant that either the six years' statute or the fifteen years' statute applies to the action, while, on the other hand, it is contended by the appellee that it is governed by the twenty years' statute of limitations.
We can not approve the mode adopted by the appellant in pleading two separate statutes in the same paragraph of answer, but as no objection was made to it by motion to paragraph, or otherwise, in the circuit court, it must be treated in this Court as a proper plea. So treating it, we proceed to an examination of the question involved.
If this were a suit by the appellee against the appellant to recover a personal judgment for the money paid in satisfaction of the judgment set up in the complaint, it is settled that such action would be barred by the six years' statute of limitations. Sexton v. Sexton, 35 Ind. 88; Lilly v. Dunn, 96 Ind. 220; Gieseke v. Johnson, 115 Ind. 308, 17 N.E. 573.
The reason for these decisions is plainly stated in each of the cases cited, and that is, that the action is not upon the instrument which the surety signed for his principal, but is upon the implied promise of the principal to indemnify him from loss on account of becoming such surety.
It is plain that the judgment upon which the appellee is seeking an execution is not governed by the provisions of section 1214, R. S. 1881, for that section has application to judgments upon the face of which, or in connection with which, it is made to appear that one or more of the judgment defendants is surety for some one or more of the other judgment defendants. Under the provisions of that section where a judgment defendant, who is a surety, pays the judgment, he is at once subrogated to all the rights of the judgment plaintiff, and may at once take out execution in his own name, and collect from the other judgment defendants the amount he has been required to pay to satisfy the judgment as to the judgment plaintiff.
In this case, when the appellee paid the judgment described in his complaint it was, prima facie, discharged. He could not take an execution thereon in his own name until there had been a trial and final adjudication that he was surety for the appellant. Laval v Rowley, 17 Ind. 36; Scherer v. Schultz, 83 Ind. 543; Shields v. Moore, 84 Ind. 440; ...
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