Thompson v. Reasoner
| Decision Date | 13 March 1890 |
| Docket Number | 14,034 |
| Citation | 24 N.E. 223,122 Ind. 454 |
| Parties | Thompson et al. v. Reasoner |
| Court | Indiana Supreme Court |
From the Blackford Circuit Court.
The judgment is reversed, with costs.
B. G Shinn, E. Pierce and C. E. Shipley, for appellants.
J Cantwell, S.W. Cantwell and J. A. Bonham, for appellee.
Reasoner instituted this action against Thompson and three others, and charged that the defendants had wrongfully and unlawfully constructed a ditch, or drain, in such a manner as to drain the surface-water off their lands, and caused it to be cast upon and overflow the plaintiff's lands to his damage. It appeared upon the face of the pleadings that in November 1883, the defendants, having given due notice, presented their petition to the circuit court of Blackford county, asking for the location and construction of a drain, so as to reclaim and drain certain wet lands of which they were the owners. Such proceedings were thereupon had, in pursuance of the statute providing for the drainage of wet lands, as that the ditch prayed for was regularly established, and the construction of the work entered upon, and in due time completed. At the proper time Reasoner, and two others whose lands were not described in the petition, nor in the report of the commissioners of drainage as liable to be either benefited or damaged, appeared, and, after waiving notice, presented a remonstrance against the report of the commissioners, alleging, among other things, as grounds therefor, that they would sustain damage to their lands, respectively, by the construction of the drain, as proposed, and that the proposed drainage could not be accomplished without an expense exceeding the aggregate benefits. Upon motion the court rejected the remonstrance, upon the ground that the remonstrants were not within the terms of the statute which prescribed the class of persons entitled to remonstrate. The remonstrants thereupon appealed to this court, and, upon the hearing, it was held that the court below had committed error in rejecting the remonstrance. The judgment was reversed, accordingly. Reasoner v. Creek, 101 Ind. 482.
No stay of proceedings having been had, or applied for, the drainage commissioner, to whom the construction of the work was referred, collected the assessments made, completed the drain under the direction and to the approval of the court, and was finally discharged pending the appeal of the remonstrants in this court. After the judgment was reversed the proceeding was reinstated in the court below, and at the next term the court ascertained the amount of damage which each of the several remonstrants would sustain, and found that the expense of constructing the work and the damages exceeded the aggregate benefits. Thereupon the proceeding was dismissed, leaving the drain as it had theretofore been constructed on the lands of the defendants, in full and complete operation.
The plaintiff charges that the drain thus constructed discharges the surface-water off the defendants' lands into a creek, which flows through the plaintiff's land which is some distance below the point of discharge, and causes the creek to overflow its banks and inundate his lands to his damage. He had a verdict and judgment in the court below. The question now is, whether or not the appellants upon whose petition the drainage proceedings were instituted, and carried forward, are liable in a civil action for damages for the injuries resulting to the lands of the plaintiff on account of the construction of the ditch, or whether they may avail themselves of the judgment under which the drain was constructed, as a defence against any claim for damages to the plaintiff's land?
The general principle is well settled that a subsisting judgment of a court which has jurisdiction of the persons and subject-matter, is binding, at least, upon all who were parties, and constitutes a sufficient justification for all acts done in its enforcement, until it is reversed or set aside by competent authority. Gray v. Brignardello, 68 U.S. 627, 1 Wall. 627, 17 L.Ed. 692; Freeman Judg., section 482; Wait Fraud. Con. (2d ed.) sections 443-444.
A judgment regularly given, although it may be erroneous, is nevertheless the act of the court, and any one who proceeds to enforce it, may avail himself of its protection until it is reversed. Whatever contrariety there may be in the adjudged cases, in other respects, all the authorities agree that where a judgment is merely erroneous, it will afford complete protection to all persons who proceed to enforce it, and who act in reliance upon the adjudication.
Upon the reversal of an erroneous judgment, the law raises an obligation against one who has received the benefit of the judgment, to make restitution to the other party of any money or property that may have been received, or for its value or equivalent in money in case the plaintiff asserts title to the thing received, or has converted it to his own use. Bank of United States v. Bank of Washington, 6 Peters, 8; South Fork Canal Co. v. Gordon, 2 Abb. 479, 22 F. Cas. 826; Reynolds v. Hosmer, 45 Cal. 616.
In case money has been received, it may be recovered back in an action for money had and received. Metzner v. Bauer, 98 Ind. 425; Martin v. Woodruff, 2 Ind. 237; Clark v. Pinney, 6 Cow. 297.
Thus it is said in McJilton v. Love, 13 Ill. 456,
"The restitution," says the Supreme Court of Missouri, "to which the party is entitled upon the reversal of an erroneous judgment is of everything which is still in the possession of his adversary." Gott v. Powell, 41 Mo. 416.
While a judgment defendant is entitled to compel the fullest restitution of all benefits which the plaintiff received on account of the enforcement of an erroneous judgment, it is not strictly accurate to say that the latter is liable to an action for damages for enforcing a judgment pending an appeal where there has been no stay of proceedings.
There would be no inducement for an appellant in any case to secure a supersedeas to stay proceedings, if it were held that the plaintiff assumed the liability of all damage which might result from the enforcement of the judgment, nor would any one venture to enforce a judgment while the right of appeal existed, or while an appeal was pending.
Where payment of a subsisting judgment is enforced by taking out regular process, the plaintiff is acting under authority of law, and can not be held responsible for damages as a wrong-doer, because it turns out in the end that the court committed an error in rendering the judgment. The plaintiff takes the chance of losing the title to any property he may have purchased at an execution sale, and of being compelled to restore to the last farthing any benefit he may have received under the judgment; but he can not be compelled to make good all the damage which the defendant, who neglected to stay proceedings pending the appeal, may have sustained by the erroneous action of the court. Galpin v Page, 85 U.S. 350, 18 Wall. 350, 21 L.Ed. 959 (374); Gay v. Smith, 38 N.H. 171; Bryant v. Fairfield, 51 Me. 149; 2 Freeman Executions, sections 346, 347; Herman Ex., p. 608. As has been...
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