Sharpe v. Baker

• Decision Date: 29 June 1912
• Docket Number: No. 7,186.,7,186.
• Citation: 51 Ind.App. 547,99 N.E. 44
• Parties: SHARPE et al. v. BAKER et al.
• Court: Indiana Appellate Court

51 Ind.App. 547

99 N.E. 44

SHARPE et al.

v.BAKER et al.

No. 7,186.

Appellate Court of Indiana, Division No. 2.

June 29, 1912.

Petition for rehearing. Petition overruled.

For former opinion, see 96 N. E. 627.

M. M. Bachelder and Ryan & Ruckleshaus, for appellants. Thomas M. Honan and Applewhite & Robertson, for appellees.

LAIRY, J.

On petition for rehearing counsel for appellant objects to the opinion of the court on the ground that it assumes that the execution upon which the real estate in controversy was sold was a joint execution founded upon a joint judgment against the husband and wife who owned the land as tenants by entireties. It is asserted that our statutes on the subject of execution do not authorize a joint execution to be issued on a joint judgment, and that, if such a one is issued, the rights of levy and sale thereunder are not greater than they would be under separate executions issued against each of said judgment debtors. From the answer in this case, it appears that the judgment upon which the execution was issued was based upon a promissory note executed by Finche Sharpe and Mintie Sharpe, whereby they promised to pay A. F. Thompson $400, with interest thereon and attorney's fees; that on said day they executed a mortgage on certain real estate therein described for the purpose of securing said note, and that said defendants expressly agreed and promised to pay the sum of money thereby secured. It does not appear whether the real estate mortgaged was owned by Sharpe and his wife as tenants by the entireties, or whether it was owned by him in his own right. An action was brought upon this note and to foreclose this mortgage, and the court found that the plaintiff was entitled to recover of the defendant Finche Sharpe and Mintie Sharpe on the note sued on in the sum of $477.76 and the further sum of $50 attorney's fees, together with costs, and a judgment is rendered against both defendants for $527.76. A decree was entered foreclosing said mortgage, and the land was sold on the decree of foreclosure for the sum of $400, and that amount was credited upon the judgment, leaving a balance due of $185.75. The execution issued upon this judgment shows that James B. Thompson and John M. Thompson as executors recovered a judgment against Finche Sharpe and Mintie Sharpe upon which there is still due the sum of $185.08, and orders the sheriff to levy the said sum of money of the property of the aforesaid defendant found in his bailiwick subject to execution. It thus appears that the note upon which the judgment was rendered was a joint note.

[1] An obligation is joint when it binds all the obligors jointly to perform.

[2] An action to enforce such an obligation must be brought against all of the obligors jointly, and cannot be maintained against one without joining the others.

[3][4] But a joint maker sued alone can only object to the nonjoinder of the others by plea in abatement, unless the defect appears from the face of the complaint, in which case it may be raised by demurrer for defect of parties defendant. Randolph on Commercial Paper, § 1665, and cases cited.

[5] At common law only one judgment could be rendered upon a joint obligation. A judgment rendered on such an obligation against one or more of the joint obligors had the effect to merge the cause of action as to all. Erwin v. Scotten, Adm'r, 40 Ind. 389;Barnett v. Juday, 38 Ind. 86;Kennard v. Carter et al., 64 Ind. 31;Crosby et al. v. Jeroloman, 37 Ind. 264;Lingenfelser et al. v. Simon et al., 49 Ind. 82;Capital City Dairy Co. v. Plummer et al., 20 Ind. App. 408, 49 N. E. 963. The rule last stated has been modified by a statute in this state which provides that “in all cases where judgments have been, or shall hereafter be, recovered against one or more persons jointly liable on contract, but such judgment has been, or shall be, rendered only against part of the persons liable, for the reason that the others were not summoned and did not appear, the plaintiff may proceed against those not summoned and who did not appear, in the same manner as if they were alone liable, but the complaint must allege the facts aforesaid.” Burns Annotated Statutes 1908, § 325. In the case of Erwin v. Scotten, supra, the court, speaking by Buskirk, J., said: “The makers of a joint note are jointly liable and the joint property of all and the separate property of each may be sold, but their joint liability cannot be converted into a several liability as would be the case if separate judgments could be rendered on a joint note.”

[6] An obligation is joint and several when it binds the obligors jointly and separately. It is the same as though the parties to it had executed a joint obligation and each of the parties had executed a separate obligation.

[7] The obligee in such an obligation may maintain a joint action against all, or a separate action against each.

[8] If a judgment is recovered on a joint obligation, it is joint.

[9] At common law the execution must follow the form of the judgment. If the judgment is joint, the execution must be joint. Graham et al. v. Smith, 1 Blackf. 414;McCoy et al. v. Elder, 2 Blackf. 183; Saul, etc., v. Geist, 1 Woodw. Dec. (Pa.) 306; Shaffer v. Watkins, 7 Watts & S. (Pa.) 219.

[10][11][12] Our statute on the subject of execution provides as follows: “Writs of execution, as now used for the enforcement of judgments, are modified in conformity to this act; and any party in whose favor judgment has been heretofore or shall hereafter be rendered may, at any time within ten years after the entry of judgment, proceed to enforce the same as provided in this act.” Burns 1908, § 716. “There shall be three kinds of executions, *** one against the property of the judgment debtor, one against...