Schneider v. Maney

• Decision Date: 29 March 1912
• Citation: 145 S.W. 823
• Parties: SCHNEIDER v. MANEY.
• Court: Missouri Supreme Court

145 S.W. 823

SCHNEIDER v. MANEY.

Supreme Court of Missouri. Division No. 1.

March 29, 1912.

1. APPEAL AND ERROR (§ 882)—ESTOPPEL TO ALLEGE ERROR—ADMISSION OF EVIDENCE.

A party who has himself introduced evidence is estopped from objecting to its admission.

2. JUDGMENT (§ 872) — REVIVAL — "JUDGMENT OF REVIVOR."

A "judgment of revivor" is not the creation of an original judgment obligation, but is a recognition of the existence of the original judgment and a continuation of its force.

For other definitions, see Words and Phrases, vol. 4, p. 3847.]

3. JUDGMENT (§ 892)—RELEASE—EFFECT OF RELEASE MADE ON JUDGMENT OF REVIVOR.

Where the assignee of judgments sued and obtained a revivor of them, and on the margin of the record of the revived judgment signed an entry, stating that for and on account of part payments made by certain of the judgment debtors, he released them from all "liability in this judgment," it was in effect a release from liability on the original judgment.

4. PRINCIPAL AND SURETY (§ 163)—JUDGMENT AGAINST SURETIES—JOINT AND SEVERAL LIABILITY.

Under Rev. St. 1909, § 2769, which makes contracts, that were at common law joint contracts, to be joint and several contracts, and section 2772, which allows a creditor to sue any one or more of joint obligors, a surety on an administrator's bond, after judgments against himself and other sureties, is liable for the total amount of the judgments, deducting any payments made by the other sureties.

5. PRINCIPAL AND SURETY (§ 163) — SUIT AGAINST JOINT OBLIGORS—STATUTORY PROVISIONS.

Rev. St. 1909, § 11,278, which provides that no surety shall be compelled, in any action, to pay more than his due proportion of the original demand, and that if any such surety shall have previously paid any part thereof he shall be liable to pay only the difference between his payment and his proportion of the original liability, refers only to liability of contribution between sureties, and does not apply in a suit by the holder of a joint obligation against one or more of the joint obligors.

6. PAYMENT (§ 65) — BURDEN OF PROOF— CONTROL OF EVIDENCE.

Ordinarily payment is an affirmative plea, and the burden of proof is on the defendant; but, where the proof of payment is in the exclusive knowledge and control of the plaintiff, the burden of producing the evidence is on him.

7. JUDGMENT (§ 918)—ACTION ON JUDGMENT —BURDEN OF PROOF—PAYMENT.

An assignee of judgments against parties jointly and severally liable released all the defendants but one, and in an action against him did not plead payments made by the others, or prove the amounts of such payments, that being a matter not within the knowledge of the defendant, though plaintiff's evidence showed that payments had been made, but not their amount. Held, that judgment for plaintiff for the full amount of the judgments sued upon would be reversed for plaintiff's failure to show the amount due.

Appeal from Circuit Court, Buchanan County; H. M. Ramey, Judge.

Action by J. G. Schneider against Thomas Maney. Judgment for plaintiff, and defendant appeals. Reversed.

Brown & Dolman, for appellant. Strop & Silverman, for respondent.

VALLIANT, J.

This is a suit on three judgments, one in favor of Francis T. Conrad for $13,493.97, another in favor of Martha Clark for $7,613.15, and the third in favor of Agnes Conrad for $7,613.51, all rendered in the circuit court of Buchanan county October 3, 1893, and all assigned to J. G. Schneider, the plaintiff in this suit. The judgments were founded on an administrator's bond, executed by James Walsh, as principal, and six sureties, Lutz, Smith, Rogers, Ullman, Fuelling, and the defendant in this suit, Maney. Before the assignment to Schneider, the judgments were released as to Rogers, and after the assignment they were released by the assignee as to Smith. Afterwards, in 1895, the assignee sued out a scire facias against Walsh, the principal, and the remaining four sureties who had not been released, and obtained a revivor of the judgments as to them. April 14, 1905, Schneider released the judgments as to all the remaining sureties, except this defendant, Maney, and on the next day brought this suit against Maney alone.

Defendant's answer was a general denial, the 10-year statute of limitations, and payment. On the trial, the plaintiff introduced in evidence the three original judgments, the judgments of revivor, and the indorsements of assignments and releases on the margin of the judgment records. On each of the original judgments was an assignment thereof by the judgment plaintiff to George T. Hoagland and by him to J. G. Schneider, the plaintiff in this suit, a release of Rogers by Hoagland while he owned the judgments, and a release of Smith by Schneider after he became the owner. The release of Rogers is in this form: "This judgment is released and satisfied as to defendant Philip Rogers by the plaintiff. See papers on file in case No. 5,049, June 30, 1894. S. D. Cowan, Clerk, by C. M. Thompson, D. C." "This judgment released as to Philip Rogers only by George T. Hoagland, by release dated September 20, 1894, and filed with papers in case No. 5,049, September 20, 1894. S. D. Cowan, Clerk, by C. M. Thompson, D. C." The...