Moss v. Pettingill

• Decision Date: 01 January 1859
• Citation: 3 Minn. 145
• Parties: HENRY L. MOSS vs. MOSES PETTINGILL et al.
• Court: Minnesota Supreme Court

Page 145

3 Minn. 145

(3 Minn. R. p. 217.)

HENRY L. MOSS vs. MOSES PETTINGILL et al.

Supreme Court of Minnesota.

Appeal from order of district court, Ramsey County.

The appellant brought the action. The complaint sets out the making of a note by one A. G. Fuller, payable to Albert Fuller & Co., the endorsement by the payee, and after him by others, and delivery thereof to Pettingill. That before the delivery to Pettingill, and after the other endorsements, plaintiff endorsed it without any consideration, simply as an accommodation endorser to the maker and other endorsers. That after the note became due, the defendant recovered judgment upon it against Albert and George Fuller, surviving partners of the payees Albert Fuller & Co., this plaintiff, and several other of the endorsers. That execution was issued on this judgment and levied upon property of one Myrick, one of the defendants, and one of the endorsers, prior to plaintiff, on said note, worth more than enough to satisfy the judgment and by a sale of a part of said property, a part of the execution was made, and that then the plaintiff, in the execution, released the remainder of the property from the levy. That afterwards another execution issued and levied upon real estate of plaintiff. And the complaint prays an injunction restraining proceedings under the levy upon plaintiff's property. A temporary injunction was upon the complaint issued.

The answer admits the allegations of the complaint, except that it avers that the levy first mentioned was not upon property of said Myrick, but of N. Myrick & Co., a partnership composed of said Myrick and another, and that all the assets of said partnership were not worth enough to pay its debts, and for that reason the levy was released.

Upon the complaint and answer and supporting affidavits, the temporary injunction was, on defendants' motion, dissolved, and plaintiff appeals.

The points and authorities for appellant are not on file.

Points and authorities for respondents: —

1. All the equities of the complaint are denied or avoided by new matter pleaded by the defendants in their answer responsive to the complaint; the injunction was properly dissolved on this ground, as the answer must be taken to be true. Gibson v. Tiltan, 1 Bland, 355; Waterman's Eden on Injunctions, vol. 1, p. 134, and vol. 2, pp. 133-4-5; Woodcock v. Bennet, 1 Cow. 711, 744.

2. A levy upon an individual partner's interest in the partnership property, being uncertain in amount and intangible, will not satisfy a judgment as to any of the judgment debtors, unless it appears that the judgment creditor had knowledge that the interest levied upon was sufficient to satisfy the judgment, in whole or part. And where it appears that the judgment creditor acted in good faith, and made diligent inquiry for information as to what the value of the interest of the individual partner was, and from such information concluded that it was of no value and released the levy on that ground, the levy will not satisfy the judgment or impair it.

Smith & Gilman, for appellant.

Sanborn, French & Lund, for respondents.

FLANDRAU, J.

Where a party recovers a judgment against several defendants, parties to a promissory note, and levies upon property of one of the parties, primarily liable, sufficient to satisfy the judgment, and then releases the levy without the consent of those defendants whose liability is only secondary, it will operate as a satisfaction of the judgment, as against them. It is the same principle which we decided in the case of Willis v. Davis, argued at the July term of this court, in 1859. There the creditor had come into the possession or control of property sufficient to satisfy his demand, by assignment to a trustee, for his benefit, and he consented to a re-assignment to the debtor, and we held that it operated to discharge the parties standing in the relation of sureties. A levy of an execution upon property puts the creditor in possession of the means to satisfy his demand, and it is his duty to use all diligence to see that it be made available to that end. If he voluntarily relinquishes his levy, and, consequently, his control over the property, the sureties, or parties who would have been benefitted by an execution of the levy, shall not be prejudiced by his act, but the result shall be the same to them as if he had done his duty toward them. 11 Wend. 125; 12 Johns. 207; 7 Johns. 428; 6 Wend. 562; Ex parte Lawrence, 4 Cow. 417; 7 Cow. 13; id. 310. The English decisions are to the same import.

The complaint contains facts enough to discharge the plaintiff Moss from liability on the judgment, as he occupied the position of an accommodation endorser upon the note upon which the judgment was recovered, and his relation and rights are not changed by the recovery of judgment. 2 Am. Leadg. Cas. 319, and the cases there cited. It alleges fully that the property levied upon was sufficient to satisfy and pay the execution, and was of the value of seventeen thousand five hundred dollars, and that the levy was relinquished by order of the plaintiff's attorneys. The injunction was properly issued, upon these facts appearing to the...