Farwell v. Becker
6 L.R.A. 400
Ill.
1889
Check Treatment
Mr. Justice Craig

delivered the opinion of the Court:

The appellee Elbert W. Shirk has entered a motion to dismiss the appeal, so far as he is concerned, on the ground that the amount involved is less than $1000 and the judgment of the Appellate Court is final.

The bill in this case was brought against two defendants— Becker and Shirk. The facts set out in the bill, briefly stated, are, that Farwell & Co., Becker, Shirk’s firm (Sherer, Shirk & Co.) and Eisen & Co. were creditors of Olquist Bros., a firm doing business at Montieello .and Center Point, Iowa. The firm became insolvent, and made transfers of their stock, which the creditors claimed were fraudulent, and thereupon brought attachment suits through the same attorneys. The goods were sold under the attachment proceedings, and enough was realized to pay the claims of Farwell, Becker and Shirk in full. Trespass suits were brought by the parties who purchased the goods from Olquist Bros., against the sheriffs who made the levies, for the value of the goods, and, after considerable litigation in Iowa, judgments were recovered by the plaintiffs in both of the suits, which judgments were paid by Farwell & Co. They also paid the costs and expenses of defending the suits, and brought this bill to compel Becker and Shirk to contribute pro rata to the payment of the amount they had paid out. The circuit court entered a money decree, requiring Becker to pay complainants $5047.75, and requiring Shirk to pay $554.74. To reverse the decree, each defendant took a separate appeal to the Appellate Court. The Appellate Court reversed the decree as to both defendants, and remanded the cause, with directions to dismiss the bill. To reverse that judgment, complainants appeal to this court.

We think it is plain that this court has no jurisdiction so far as the defendant Shirk is concerned. Although two parties (^Becker and Shirk) were made defendants to the bill, the action is against each defendant to enforce a separate and distinct liability. The claim relied upon was separate as to each defendant, and so was the recovery. Shirk was in no manner connected with Becker as to the claim against him, nor was Becker in any manner liable as respects the claim against Shirk. Where the amount against each defendant is separate and distinct, as is the ease here, the two amounts can not be united so as to confer jurisdiction, but each must be treated as a separate suit; and if the amount involved as to either one is not large enough to confer jurisdiction, the appeal must fall. See Paving Co. v. Milford, 100 U. S. 147.

The appeal, as to appellee Shirk, will be dismissed.

Several questions have been discussed by counsel, in the argument, but there is but one question of any importance presented by the record, and that is, whether complainants in the original bill (appellants here) have the right to require Gerhard Becker to contribute to the payment of the judgments rendered in the district courts of Jones and Linn counties, Iowa, and costs, which the qomplainants had paid, in consequence of the levy on the goods as the property of Olquist Bros.

It is insisted by appellee, that in the attachment and sale of the goods in Iowa, the complainants, and Gerhard Becker, the defendant, were all wrongdoers, and that no right of contribution exists between wrongdoers. There are cases which hold that no right of contribution exists between wrongdoers. Merryweather v. Nixon, 8 Durn. & East, 186, may be regarded as a leading case on the subject. Nicholas v. Newling, 82 Ind. 448, Peck v. Ellis, 2 Johns; Ch. 131, Cranston v. Limbet, 18 Ohio, 81, and Spalding v. Oakes, 42 Vt. 343, hold the same doctrine. There are other cases where the same rule has been declared, but we do not think the weight of authority sustains the doctrine that no right of contribution exists between wrongdoers as it is broadly stated in Merryweather v. Nixon. Indeed, the later English cases do not, in our opinion, sustain the doctrine as it is laid down in that ease. The question arose in Adamson v. Bidgood, 4 Bing. 66, and in passing upon the question, among other things, Beet, C. J., said: “It was certainly decided in Merryweather v. Nixon that one wrongdoer could not sue another for contribution. Lord Kenyon, however, said that the decision would not affect cases of indemnity, where one man employed another to do acts not unlawful in themselves, for the purpose of asserting a right. This is the only decided case on the subject that is intelligible. The case of Phillips v. Biggs, Hasdr. 164, was never decided, but the court of chancery seemed to consider the case of two sheriffs of Middlesex, where one had paid the damages in an action for an escape, and sued the other for contribution, as like the case of two joint obligors. From the inclination of the court in the last case, and from the concluding part of Lord Kenyon’s judgment in Merryweather v. Nixon, and from reason, justice and sound policy, the rule that wrongdoers can not have redress or contribution against each other, is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act.” What was said in the case cited was approved in a later case—Betts v. Gibbons, 2 Ad. & Ell. 57. See, also, Nooley v. Batte, 2 Car. & Payne, 417.

Story on Partnership, (sec. 220,) after stating what is regarded as the general rule,—that no right of contribution is allowed, by the common law, between joint wrongdoers,—says: “But the rule is to be understood according to its true sense and meaning, which is, where the tort is a known, meditated, wrong, and not where the party is acting under the supposition, of the entire innocence and propriety of the act, and the tort is merely one of construction or inference of law.”

Armstrong Co. v. Clemen Co. 66 Pa. St. 218, sanctions the rule announced in Story, and after reviewing the authorities on the question, holds that where the tort is a known, meditated wrong, contribution can not be had, but where the party is acting under the supposition of the entire innocence and propriety of the act, contribution may be awarded.

In Bailey v. Busing, 28 Conn. 455,—a leading case on the subject,—it was held: “The rule that there can be no contribution among wrongdoers has so many exceptions that it can hardly, with propriety, be called a general rule. It applies properly only to eases where there has been an intentional violation of the law, or where the wrongdoer is presumed to have known that the act was unlawful.”

In Jacobs v. Pollard, 10 Cush. 287, the Supreme Court of Massachusetts state the law as follows: “No one can be permitted to relieve himself from the consequences of having intentionally committed an unlawful act, by seeking an indemnity or contribution from those with whom, or by whose authority, such unlawful act was committed. But justice and sound policy, upon which this salutary rule is founded, alike require that it should not be extended to cases where parties have acted in good faith, without any unlawful design, or for the purpose of asserting a right in themselves or others, although they may have thereby infringed upon the legal rights of third persons. It "is only where a person knows, or must be presumed to know, that his acts were unlawful, that the law will refuse to aid him in seeking an indemnity or contribution. It is the unlawful intention to violate another’s rights, or a willful ignorance and disregard of those rights, which deprives a party of his legal remedy in such cases.”

Acheson v. Miller, 2 Ohio St. 203, is a case in its facts quite ■similar to the present case. In the discussion on the right of ■contribution, the Supreme Court of Ohio said: “The rule that no contribution lies between trespassers, we apprehend is one not of universal application. We suppose it only applies to ■cases where the persons have engaged together in doing, wantonly or knowingly, a wrong. The case may happen that persons may join in performing an act which to them appears to be right and lawful, but which may turn out to be an injury to the rights of some third party, who may have a right to an ■action of tort against them. In such case, if one of the parties who has done the act has been compelled-to pay the amount of the damages, is it not reasonable that those who were engaged with him in doing the injury should pay their proportion?” After reviewing the authorities, the court holds that the legal rule is, that when parties think they are doing a legal and proper act, contribution will be had, but when the parties are conscious of doing a wrong, courts will not interfere. See, also, Coventry v. Barton, 17 Johns. 141.

Under the authorities, we think it is clear that if the attaching creditors, at the time they sued out their attachments and ■seized the goods, acted in good faith, exercising such prudence and caution as an ordinarily prudent person would exercise, with no intention of committing a trespass or injuring any one, but with the honest belief that the transfers made by Olquist Bros, were fraudulent as to creditors, the right of contribution exists, although it ultimately turned out that the seizure of the goods was unlawful and unwarranted. The facts ■surrounding the transaction at the time the levy was made, were such, in our opinion, as to lead any prudent person to believe that the goods were liable to be attached by creditors, as was done. Olquist Bros, were, at the time of the pretended sale, largely indebted to various parties. A day or two before the attachments issued, they claimed to have sold the Monti■cello store to N. A. Sunberg, and the other stock to N. A. Sun-berg, and F. B. Olquist, another brother. No effort was made to adjust or pay their liabilities. They retained no other property liable to levy or sale. These and other kindred facts were brought to the attention of the attaching creditors before they proceeded to seize the goods. If the sales were fraudulent, although the possession of the goods was turned over to the purchasers, the creditors had the right to levy. Were not the facts surrounding the transaction such that a reasonably prudent person might well believe that an attempt had been made to defraud creditors ? If so, it can not be said that the attaching creditors, in making the levy, intentionally violated the law. Nor were they presumed to have known that the levy was unlawful. The fact that the goods, when attached, were in the possession of Sunberg, is not a controlling fact. The ■surrounding circumstances indicated that the pretended sale was fraudulent, and if fraudulent, as it appeared to be, the •creditors had a right to attach the goods, although in possession of a pretended purchaser, and a seizure, under such circumstances, can not be regarded as tortious.

As to the equities of the case, they are with the complainants. The defendant, as well as complainants, sued out attachments, which were levied on the goods. .He assisted in defending the actions brought by the claimant of the goods. His debt was fully paid from money arising out of a sale of the goods under the attachment, and as the complainants have been compelled to refund the value of the goods, equity and fair dealing unite in requiring the defendant to contribute his just proportion of the burden which has been cast upon the complainants on account of the seizure and sale of the goods. We think the decree of the circuit court holding Becker liable to contribute was correct.

One other fact remains to be noticed. It appears from the evidence, that the complainants, when they paid the two judgments rendered against them for taking the goods, did not have the judgments receipted and cancelled, but they were assigned to Parkhurst, who was an attorney of complainants^ The decree treats the judgments as belonging to complainants, which is the fact; but as they were assigned to Parkhurst, we-think the decree should be modified, requiring complainants to procure an assignment of the judgments from Parkhurst, and file the same with the decree, as a condition precedent to the issuing of an execution to collect the amount found due by the decree. In this respect the decree of the circuit court will be-modified. In all other respects it will he affirmed.

The judgment of the Appellate Court, as to defendant Becker, will he reversed.

Judgment reversed.

Mr. Justice Bailey, having heard this case in the Appellate; Court, took no part in its decision here.