63 Ind. App. 237 | Ind. Ct. App. | 1916
Appellee brought this action against appellants, the Chicago, South Bend and Northern Indiana Railway Company and the Northern Indiana Railway Company, to recover money alleged to be due him. The complaint is in five paragraphs. The first is in the form of • a common count for money had and received. The remaining paragraphs are substantially alike and in substance are as follows : The Northern Indiana Railway Company was a corporation duly organized under the laws of Indiana, and owned and operated street and interurban railways in Indiana. The Chicago, South Bend and Northern Indiana Railway Company is also a similar corporation engaged, in like business. On February 6, 1906, in the St. Joseph Circuit Court, appellee recovered a judgment against one Diliworth, a nonresident of the State, for $3,873.41, and also against the Northern Indiana Railway Company .as garnishee defendant. It was found and adjudged that the railway company owed Dillworth a certain nonnegotiable note due February 15, 1906, in a sum in excess of appellee’s judgment against Dillworth, and that other garnishee defendants were sureties of the railway company on said note. The railway company was ordered to pay appellee’s judgment in the sum of $3,873.41 when the aforesaid note became due and to pay the balance due on the note to the City' National Bank of South Bend for the use and benefit of the owner of said note.
Between the date of the judgment and February 15,
“That in consideration of the payment of said judgment at this time, this plaintiff would indemnify and save harmless the said defendant railway company from any further or additional payment growing out of any claim of ownership or right, title or interest in said note of said Lincoln National Bank; that said plaintiff further agreed to defend all actions or suits at law which might arise upon said claim of the Lincoln National Bank; that this plaintiff further agreed to pay all expenses of any litigation which might arise from said claim, of said Lincoln National Bank, and to defend any suit or suits so brought at his own expense; that for the purpose of indemnifying said Northern Indiana Railway Company against said alleged claim of said Lincoln National Bank, it was agreed that the funds and moneys paid upon said judgment should be delivered back to said defendant, Northern Indiana Railway Company and be retained by it as a protection against any claim or suit brought against said defendant by the said Lincoln National Bank, and growing out of said note, which said money, so long as it remained in' the hands of said defendant railway company, was to bear interest in favor of this plaintiff at the rate of six per cent per annum, and which said*241 money and funds were to be delivered over to this plaintiff, together with interest thereon, upon the termination or settlement of any suit to be brought by the said Lincoln National Bank.”
In compliance with said agreement, on February 15, 1906, the railway company issued its check (No. 5624) in the amount of $3,873.41, drawn on the Citizens National Bank of South Bend, Indiana, in favor of the clerk of the St. Joseph Circuit Court, which check was delivered and accepted by the clerk in payment of said judgment and afterwards endorsed by him to appellee, who immediately endorsed and delivered it back to the Northern Indiana Railway Company to be held as indemnity as above stated. Appellee then released the judgment against said company upon the record. Thereafter the Lincoln National Bank brought suit in the St. Joseph Circuit Court against the Northern Indiana Railway Company for the collection of said note. The claim was litigated, an appeal taken, and thereafter again litigated in said circuit court. On April 2, 1913, the Lincoln National Bank abandoned its alleged claim to said note and dismissed its suit against said company, and the suit finally ended without loss, expense or damage to said company. Pursuant to his agreement, appellee, with the knowledge and consent of said company, employed attorneys to defend the suit, and paid all expenses of such litigation; he and the attorneys so employed consulted frequently with the officers and agents of the Chicago, South Bend and Northern Indiana Railway Company, which company succeeded to the rights, properties, debts and liabilities of the Northern Indiana Railway Company. On January 26, 1907, appellant, Chicago, South Bend and Northern Indiana Railway Company, was incorporated under the laws of this state for street railway purposes and particularly for the'purpose of taking over all the stock, assets and property, and succeeding to all the rights, duties and liabilities of the Northern Indiana Railway Company.
The cross-complaint is very long, goes into the history of the original suit in garnishment, the sale and transfer of the property of the Northern Indiana Railway Company, and the arrangement and conditions under which the transfer was accomplished. It is against appellee and Northern Indiana Railway Company and the following additional parties, viz.: William L. Taylor, Arthur Kennedy, The Federal Union Surety Company, The Western Indemnity Company, the Citizens National Bank of South Bend, Calvert H. DeFrees, Charles Dietrich, Gabriel R. Summers, Edward A. Morse, Samuel T. Murdock, Charles M. Murdock and Mary Murdock Cory. The pleading shows that Arthur Kennedy, party of the first part, and Charles F. Dietrich and James Murdock entered into the original contract by which the Northern Indiana Railway Company sold and transferred its property, and the parties to the contract other than James Murdock, who has since deceased, are made parties to the cross-complaint because of their relation to that transaction. The descendants of James Mur
Appellant insists that the court erred in sustaining the motion to strike out the cross-complaint. Appellee contends that the matter set up in such pleading is not germane to the questions at issue on his complaint; that the facts averred, which are in any way related to the subject-matter of the transactions in issue were also in issue on the complaint and answers, and the ruling of the court in striking out the pleading, if wrong, was a harmless error for which the judgment should not be reversed.
The assignment of the judgment by appellee to other parties, long after he had placed upon the record a satisfaction thereof, is open to the inference that, notwithstanding such satisfaction, he still claimed to own or have some assignable interest in the judgment. The judgment rendered in this suit does not bar such assignees from an effort to enforce the collection of the judgment. The cross-complaint tendered this issue against such assignees and also tendered other alleged issues. Some of them may not be germane to the subject 'of the legal controversy growing out of appellee’s demand, but the fact remains that appellee’s demand in this suit is based upon the fact that he satisfied and released a valid judgment upon receipt of the amount due thereon and thereupon placed the money in the keeping of the judgment defendant until he met certain conditions which in this suit he claims to have satisfied, and is therefore entitled to his money, not on the original judgment, but from the fact that the party who received it from him, now wrongfully refuses to pay it to him. The money due represents the same original claim. If in fact he had sold and transferred the judgment, and in that way obtained payment of his original claim, he is not in equity entitled to receive it again. If that judgment may be enforced against appellants or if there is reasonable ground to assert that they may be called upon to resist its collection as alleged in the cross-complaint, then the controversy should have been ended in this suit, in all its phases, as to all possible parties to the transaction or controversy, to avoid a multiplicity of suits and to reach and satisfy the ends of justice as to all who assert, or are likely to claim, some interest in the subject-matter of the transactions involved in the suit.
It is the policy of the law to avoid multiplicity of suits.
The judgment is therefore reversed, with instructions
Note.—Reported in 112 N. E. 552. See under (2-4) 31 Cyc 619-625; (5) 113 Am. St. 639; 31 Qyc 625. (6) New parties, right to bring in by cross-bill, 20 Ann. Cas. 1151; 16 Cyc 200; (7) 23 Cyc 1500.