Scanlin v. Stewart

• Decision Date: 16 May 1894
• Docket Number: 16,853
• Citation: 37 N.E. 401,138 Ind. 574
• Parties: Scanlin v. Stewart et al
• Court: Indiana Supreme Court

37 N.E. 401

138 Ind. 574

Scanlin v. Stewart et al

No. 16,853

Supreme Court of Indiana

May 16, 1894

Reported at: 138 Ind. 574 at 580.

From the Shelby Circuit Court.

The judgment is affirmed.

J. B McFadden, for appellant.

K. M Horn and E. K. Adams, for appellees.

McCabe J. Hackney, J., took no part in this decision.

OPINION

McCabe, J.

This was a suit by the appellee William P. Stewart against the appellant, as principal, and the appellee George W. Crum, as surety, on a promissory note, and seeking a foreclosure of a vendor's lien as against Scanlin.

The appellee Crum, as such surety, filed a cross-complaint against his codefendant, appellee Stewart, and appellant, Scanlin, showing that he had paid the debt and asking to be subrogated to the rights of Stewart.

Appellee Lux was admitted as a party defendant by the court, and a demurrer by Scanlin to the cross-complaint of Lux was overruled.

The assignment of errors calls in question the rulings of the court in overruling the demurrers to each of said cross-complaints.

At the request of Scanlin, the court made a special finding of the facts, and stated its conclusions of law thereon, to which the appellant excepted. It is wholly unimportant whether the rulings were correct or not in holding the cross-complaints good, as the same question again arises on the exceptions to the conclusions of law on the facts specially found, as has been often decided by this court. State, ex rel., v. Vogel, 117 Ind. 188, 19 N.E. 773; Martin v. Cauble, 72 Ind. 67; Douthit v. Douthit, 133 Ind. 26, 32 N.E. 715; Reddick v. Keesling, 129 Ind. 128, 28 N.E. 316; Ross v. Banta, 140 Ind. 120, 34 N.E. 865.

The special finding states that "On January 25, 1890, said Scanlin, as principal, and the defendant George W. Crum, as surety, executed to the plaintiff (Stewart) their certain promissory note, payable sixty days thereafter, for $ 77.23, with interest at eight per cent. per annum from said date; that after the maturity of said note said Stewart instituted this action upon said note, and thereafter said surety, George W. Crum, fully paid and discharged said note and interest in the sum of $ 79.55, on June 15, 1890; that there is now due of principal and interest on said sum $ 83.27."

It is further found that on April 17, 1890, the cross-complainant John Lux, in a suit before a justice of the peace of Brandywine township, Shelby county, Indiana, the township of the residence of said Scanlin, recovered a judgment against said Scanlin, after more than three days proper service of summons, for the sum of $ 43.07, and costs taxed at $ 4.65, since which time said judgment has drawn interest at the rate of six per cent. per annum and is collectible without relief from valuation law; that on April 29, 1890, execution issued on said judgment, which execution was duly levied upon a certain building situate upon the west half of lot No. 19, on Washington street, in the town of Fairland, in said county; that said levy continued in force until December 18, 1890, when the plaintiff in said suit, John Lux, caused a writ of venditioni exponas to issue to the proper constable of said township, which was on said day placed in the hands of said constable, who now holds the same, together with the lien of such levy, not having sold said property; that the said house is the personal property of said Scanlin, erected by him upon said lot leased from one Totten for a term of years.

It is to be observed that these facts are all within the issues made by the pleadings.

The court stated, as conclusions of law: "That the cross-complainant George W. Crum should recover from the defendant Frank Scanlin the sum of $ 83.27, together with his costs herein; that the cross-complainant John Lux should maintain the lien of his alias execution as superior to any claim of the said cross-complainant Crum herein, and by reason of this proceeding upon said house; to which conclusions, the defendant Scanlin at the time excepts."

The judgment and decree followed the conclusions of law.

The objection urged here is against the sufficiency of the facts found to warrant the conclusions of law, in that the lien of the levy of Lux's execution was found to have continued in force from the time of its issue, viz, from April 29, 1890, until the 18th day of December, 1890, more than six months. It is contended that this shows an interval between the expiration of the life of the execution and the issue of the vendi. The statute provides that such executions shall be returnable in six months, but may be sooner returned if satisfied, or no property is found. 1 Burns' R. S. 1894, section 1577; R. S. 1881, section 1509.

The next section provides for issuing a vendi when property is levied on and remains unsold.

In such case the lien of the first execution is continued. Herman on Executions, p. 331, section 215.

The finding shows that the constable continued to hold possession of the property throughout the whole time. The levy of the execution was a presumptive satisfaction of the judgment, if the property is of sufficient value, until the levy is legally disposed of. Stewart v. Nunemaker, 2 Ind. 47; Lindley v. Kelley, 42 Ind. 294; McIver v. Ballard, 96 Ind. 76; Richey v. Merritt, 108 Ind. 347, 9 N.E. 368; McCabe v. Goodwine, 65 Ind. 288.

So long as the constable held this property under the execution, if of sufficient value to pay the judgment, it could hardly be said, under the foregoing authorities, that the lien of the execution was lost because the officer had failed to promptly return the execution at the exact time of the expiration of the six months, when the law made it returnable.

It has been held in Alabama that "Where executions have been regularly issued on a judgment, without the lapse of an entire term, the continuity of the lien is not broken by the fact that the execution issued on the judgment, which was so irregular, informal and imperfect that it would have been quashed on motion, was returned by the order of the...