Nickless v. Pearson

• Decision Date: 14 January 1891
• Citation: 26 N.E. 478,126 Ind. 477
• Parties: Nickless v. Pearson.
• Court: Indiana Supreme Court

126 Ind. 477

26 N.E. 478

Nickless

v.Pearson.

Supreme Court of Indiana.

Jan. 14, 1891.

Appeal from circuit court, Daviess county; D. J. Hefron, Judge.

Coffey, J., dissenting.

W. R. Gardiner, S. H. Taylor, and G. Putnam, for appellant. John H. O'Neall, for appellee.

OLDS, J.

The appellant sued the appellee, alleging in his complaint that on the 4th day of January, 1870, the appellee recovered a judgment in the common pleas court of Lawrence county against the appellant for $791 and costs. That appellant held a note executed by one Roby, dated August 3, 1870, for $1,504, due in one day. That the note did not waive valuation laws. That on the 6th day of August, 1870, appellant indorsed said note to appellee as collateral security to secure the payment of said judgment, and took from the appellee a memorandum as follows: “Received of Allen Nickless, as collateral security on a judgment I hold on him, a note on James H. Roby, dated August 3rd, 1870, and due in one day after date, for $1,504.00, which I am to collect and apply on said judgment, retaining a reasonable fee for collecting the same; and the said Nickless is to pay me on said judgment ten per cent., and the overplus of said note after the same shall be collected and said judgment, etc., paid, I am to pay over to said Nickless. This Aug. 6th, 1870. E. D. Pearson.” That at the time of the execution of said note by said Roby, and continuously thereafter until after the sheriff's sale hereinafter mentioned, Roby was a citizen of Daviess county, Ind., and had personal property there during all of the time subject to execution, from which said debt might have been collected by the use of due diligence on the part of appellee. That said property of said Roby consisted of a saw-mill and fixtures of the value of $3,000, and other property of the value of $105. That appellee brought suit on said note in his own name against said Roby, and recovered judgment on the same in the circuit court of Daviess county, at the August term, 1870, for $1,515, and costs, to which suit appellant was not a party. That by reason of the carelessness and negligence of the appellee said judgment was rendered without relief from valuation and appraisement laws. That on the 20th day of September, 1870, appellee caused an execution to issue on said judgment against said Roby, and had the same placed in the hands of the sheriff of said Daviess county. That the execution provided for the sale of the property without relief from valuation and appraisement laws. That the sheriff levied said execution, as commanded, on the said property of Roby, viz., the saw-mill and other property, and advertised the same, and on the 19th day of December, 1870, duly sold the same to one James Williams for the sum of $306. That at the time said property was of the value of $3,105, and, had said judgment and execution provided for the sale of the same subject to appraisement, said property would have brought two-thirds of the appraised value thereof. That the appellee carelessly and negligently failed to attend said sale, or to have any person to attend for him, authorized to bid on said property; and, had he done so, said property would have sold for two-thirds of its cash value, and have sold for a sum sufficient to have paid said judgment and all costs. That said purchaser would have paid $2,500 therefor had there been any person present to have bid against him. That, had the appellee purchased said property for the full amount of said judgment and costs, he could have disposed of the same so as to have covered all expenses in caring for and disposing of the same, and still had sufficient remaining to have satisfied said judgment and costs. That during all the time since said sale Roby has been to tally insolvent. That the proceeds of said sale paid the costs and attorney's fee charged by appellee, and no more. That, in consequence of the carelessness and negligence of the appellee, appellant has lost his entire debt due from said Roby. Some of the paragraphs differ from the others, and allege that the appellee was an attorney, and took the assignment of the note as aforesaid, and agreed to collect the note and charge a reasonable fee, and apply the proceeds as aforesaid, and agreed to attend the sale and bid off said property for the benefit of the appellant.

The appellee filed a number of paragraphs of answer, some of which were pleas of former adjudication. In the eighth paragraph it was alleged that in December, 1880, the plaintiff, Allen Nickless, filed in the Lawrence circuit court of Lawrence county, Ind., his complaint against this appellee, which complaint is as follows, (setting out a copy of the complaint,) which alleges the same facts alleged in the complaint in this case, and sets out a copy of the same receipt set out in the complaint in this case; and further alleging in said eighth paragraph of answer that thereafter, on the 24th day of December, 1880, the same being the fifth judicial day of the December term, 1880, of the said Lawrence circuit court, this defendant appeared to the aforesaid complaint, and, being by said court ruled to answer the same, did then and there, in discharge of said rule, file his demurrer to said complaint, setting out a copy of the demurrer, the cause of demurrer being want of sufficient facts; that appellant joined issue on said demurrer, and the same was submitted to the consideration and judgment of said Lawrence circuit court for determination, whereupon said court sustained said demurrer, to which ruling said appellant excepted, and refused to plead further, and said court thereupon rendered judgment upon said compaint and said demurrer, and adjudged that said appellant take nothing, and that appellee recover his costs; that said Nickless then and there prayed an appeal in said cause to the supreme court of Indiana, which was granted; that said judgment is still in full force, and unreversed. Then follow the proper formal allegations to make it a good plea of former adjudication.

The next paragraph of answer pleads a former adjudication in a cause commenced by the appellant, Nickless, against appellee in the Lawrence circuit court in December, 1880; alleging that in such action appellant based his cause of action on the identical receipt set out in the complaint in this case, and averring the same facts as alleged in the complaint in this case, which action was determined and judgment rendered in favor of appellee, and that the judgment is still in full force, unreversed. There is also a further paragraph of answer, pleading former adjudication.The appellee also pleads former adjudication in a case in the Martin circuit court, wherein the appellee was plaintiff and appellant was defendant, and suit brought by the appellee on the same judgment set out in the complaint in favor of appellee against appellant, in which appellant answered the same facts set up in his complaint in this case. Upon the trial of this cause the records of said judgments were offered and admitted in evidence. The record in the case of Nickless v. Pearson in the Lawrence circuit court show an appeal prayed to the supreme court and granted. The appellee has assigned numerous cross-errors, which include the overruling of his demurrers to each paragraph of the complaint. The jury returned a special verdict, in which they find, in substance, the following facts: That appellee recovered a judgment against the appellant in the Lawrence common pleas court on the 4th day of January, 1870, for $791 and costs; that Roby executed his note to appellant, dated August 3, 1870, for $1,504, due in one day, with 10 per cent. interest, which did not waive valuation laws; that on August 6, 1870, appellant indorsed said note to appellee as collateral security for the payment of appellee's judgment; that appellee agreed to collect the note, and apply the proceeds to the payment of his judgment, calculating interest thereon at 10 per cent., and to retain a reasonable attorney fee and pay the balance to appellant; that at the time the note was assigned appellant notified appellee that Roby owned a portable steam saw-mill of the value of $3,000, and that the note would have to be made out of that property; that appellee agreed, if appellant would assign the note, he would attend the sheriff's sale of the property in case it became necessary to collect the same by suit; that appellant could not read or write, and appellee was a practicing attorney; that when the receipt was executed appellee stated to appellant its terms, as shown by the receipt hereinbefore set out; that appellee took judgment against Roby on the note on the 30th day of August, 1870, in the Daviess circuit court, for $1,515.25, waiving valuation laws, and on the 20th day of September, 1870, caused an execution to issue thereon, and to be delivered to the sheriff, and that the sheriff levied the same on the portable saw-mill and other property of Roby, and sold the same on December 19, 1870, to one James Williams for $306, and that at the time of the sale the property was of the value of $2,507, and was all of the property owned by Roby, and he has never since owned any; that appellant had no notice of the time or place of the sheriff's sale until after the sale had taken place.

It is further found that Hugh and John Barr obtained a judgment against the said Roby before Berrill T. Meredith, a justice of Daviess county, on the 21st day of October, 1879, for $199.50 and costs, on which an execuion was issued on the 4th day of November, 1870, to one Storms, a constable of said county, who, on the 5th day of December, 1870, as such constable, sold the said portable steam saw-mill to one James Williams for $1,000; and that, after said constable's sale and before the sheriff's sale, by agreement between Roby and Williams, Williams relinquished all right he may have acquired to the property by virtue of his purchase at the...