65 Ind. App. 586 | Ind. Ct. App. | 1917
This is a suit by appellant against appellees for contribution.
The errors assigned are the overruling of each of appellant’s separate demurrers to the second paragraph of each of the separate answers of the appellees; overruling appellant’s motion for a new trial.
Appellant filed her complaint against appellees in which she alleges in substance that on March 4, 1911, one Harry J. Milligan filed in the Marion Superior Court his complaint against her and Thomas J. Endsley, P- H. Hill, Orval E. Mehring and William J. Cline, Jr., to recover on a promissory note purporting to have been signed by Thomas J. Endsley and appellant and payable to P. H. Hill for the sum of $750, with interest and attorney’s fees, and to have been indorsed by appellees; that appellant filed an answer in which she alleged that she did not sign the note in suit, and also filed a cross-complaint against all of the other parties to the suit in which she alleged in substance that the note sued on was not her obligation, and asked that the same be declared void and be canceled; that appellees Mehring and Cline each filed answers to the complaint in which each alleged that the
“Harry J. Milligan vs. Jennie R. Hedges Orval E. Mehring & William Cline
“We, the jury, find for the plaintiff and against all the defendants and assess his damages at Nine-*590 Hundred Dollars ($900.00), which included Seventy-five Dollars ($75.00) attorney fees. William J. Eib, Foreman.”
That on June 8, 1912, judgment was rendered on the verdict as follows: “ ‘It is therefore considered and adjudged by the Court that the plaintiff recover of and from the defendant herein the sum of Nine Hundred ($900.00) Dollars, which includes the sum of Seventy-five ($75.00) Dollars attorney’s fees, ■ rendered herein, as his damages heretofore assessed by the jury herein, together with the costs of this action by him laid out and expended taxed at $-. It is further considered and ordered by the Court that this judgment is collectable without relief from valuation and appraisements laws,’ which verdict and judgment is equally against all the defendants and makes each severally and jointly liable for the payment and finding against Mehring and Cline on their cross-complaint asking to be found sureties only, and that Mrs. Hedges be exhausted before they should be required to pay, and said judgment remains unappealed from and in full force and effect as against said Mehring and Cline on said issue.”
That said verdict and judgment is equally against all the defendants and makes each severally and jointly liable for the payment and is a finding against “Mehring and Cline on their cross-complaint asking to be found sureties only, and that Mrs. Hedges be exhausted before they should be required to pay, and said judgment remains unappealed from and in full force and effect as against said Mehring and Cline on said issue.”
It is averred that Mehring and Cline requested the clerk of the Hancock Circuit Court to issue execution against appellant, which was accordingly done, and her property was levied upon and sold for $992.35 to pay and satisfy the judgment aforesaid; that thereafter she
A demurrer to the complaint for insufficiency of facts to state a cause of action was overruled. Each of the appellees filed a separate second paragraph of answer, which in substance alleged that on August 27, 1909, appellant and Thomas J. Endsley executed to one P. H. Hill their promissory note due eight months from date for the sum of $750 and attorneys fees, negotiable and payable at the Peoples State Bank of Indianapolis, Indiana; that before maturity, for a valuable consideration, said Hill sold and indorsed said note to William J. Cline, Jr., who thereafter in like manner sold and indorsed the same to Orval E. Mehring; that thereafter in the due course of business, and before the maturity of the note, Mehring sold and indorsed the same to Harry J. Milligan for a valuable consideration, a copy of which note and the several indorsements are set out and made a part of the answer; that the makers of said note, Jennie R. Hedges and Thomas J. Endsley, failed and refused to pay the same when due. The answer then alleges in detail the proceedings by which Milligan obtained judgment on the note; that to Milligan’s complaint appellant filed an answer of non esi factum; that Mehring and Cline filed a general denial to the complaint and each filed a second paragraph of answer in which it was alleged that the note was purchased in the regular course of business before maturity, in good faith, for a valuable consideration, and duly transferred by indorsement before maturity of the note to the plaintiff, Milligan, who should be compelled to first exhaust the property of the makers of said note before levying on their property; that “no answer or reply was filed
The demurrer to the special • answer was on the ground that it'does not state facts sufficient to constitute a cause of defense. The memoranda states in substance that both complaint and answer show that the judgment was joint against all of the defendants, the effect of which was to adjudge them each and all equally liable; that the only new fact alleged in the answer is the absence of a reply to the special answer of Cline and Mehring; that going to trial without such reply waived it; that the judgment rendered embraces not only what was actually determined, but every other matter which the parties might have litigated in the cause.
The appellant also filed a special reply to the second paragraph of special answer of each of the appellees in which she set up a history of the execution and transfer of the note and the suit thereon and a part of the instructions of the court in which the court set out the substance of the aforesaid second paragraph of the an
It is also charged in the special reply that the issue presented by the special answer or cross-complaint of Cline and Mehring of their secondary liability “was deemed and taken as a question properly before the court, and jury, being adjudicated and determined”" that among the interrogatories submitted to the jury was the following: “No. 10. Did the defendant, Jennie R. Hedges, sign the note in suit and did P. H. Hill thereafter- and upon the faith thereof accept her as surety on said note? Ans. Yes.”
■ Upon the trial it was agreed that appellant had paid the judgment; that she had made due demand for reimbursement from each of the appellees before filing this suit and that they refused to pay her any amount whatever.
Appellant’s brief also contains the following, which is unquestioned by appellees, viz.: “.The following parts of the record in the case of Milligan v. Endsley et al., No. 12145, in the Hancock Circuit Court, were placed in evidence, which includes all the pleadings filed in said cause, the plea of suretyship filed by appellees and included the instructions of the Court given to the jury in the second trial of said cause, designated as No. 9; the interrogatories and answers thereto in the second trial, and the verdict of the jury; the judgment and finding of the Court, and the proceedings on the first trial, as set out in the second special paragraph of (appel
This was all the evidence in the trial of the cause.”
Appellant and appellees do not differ materially as to the law of contribution as established by text-writers and the decided cases. 3 Pomeroy, Eq. Jurisp. §1418; Sheldon, Subrogation (2d ed.) §140 et seq., §§181, 182; Norris v. Churchill (1898), 20 Ind. App. 668, 670, 51 N. E. 104; Knopf v. Morel, supra; Githens v. Kimmer (1879), 68 Ind. 362; Houck v. Graham (1886), 106 Ind. 195, 6 N. E. 594, 55 Am. Rep. 727; Warring v. Hill (1883), 89 Ind. 497. The chief difficulty in this case arises in applying the law to the peculiar facts of this case, and the parties differ widely as to the effect of the pleadings, procedure, verdict, and judgment in the suit brought by Milligan.
No process was issued against appellant on the cross-complaint of appellees in the original suit, and she filed no answer or other pleading thereto, but the record shows that the issue raised by the cross-complaint was submitted to and tried by the jury without objection as well as the issue of the liability of the defendants to the plaintiff presented by the complaint.
Section 1269 Burns 1914, §1212 R. S. 1881, provides: “When any action is brought against two or more defendants upon a contract, any one or more of the defendants being surety for the others, the surety may, upon a written complaint to the court, cause the question of suretyship to be tried and determined upon the issue made by the parties at the trial of the cause, or at any time before or after the trial, or at a subsequent term'; but such proceedings shall not affect the proceedings of the plaintiff.”
Lewis v. Bortsfield, supra, was a partition suit in which one of the defendants filed a cross-complaint in which she alleged that she was the owner in fee of an undivided interest in the real estate, and prayed for partition thereof. There was no summons on the cross-complaint and no appearance or answer thereto by one of the defendants, and on appeal it was contended by such defendant, the appellant in the Supreme Court, that the judgment was not binding upon him because there was no appearance to or issue upon the cross-complaint, and the court in 'disposing of the question said: “It is clear that appellant’s failure to answer, or join issue upon, the cross-complaint of Susannah Goings, affords him no ground for the reversal of the judgment below; after trial, without objection on that ground, although no answer was filed to the cross-complaint, it will be regarded and held, on appeal, as if an answer in denial had been filed. Casad v. Holdridge, 50 Ind. 529; Purdue v. Stevenson, 54 Ind. 161; Bass v. Smith, 61 Ind. 72. Nor will the alleged fact, that there was no appearance by appellant to the crosscomnlaint. afford him any .around for the reversal of
In Bowman v. Citizens’ Nat. Bank, supra, this court reviewed the decisions on the subject of a cross-complaint against parties already in court and applied the rule stated in Lewis v. Bortsfield, supra, to the question of suretyship where the parties were present at the trial and held that the court had jurisdiction to determine the issue presented by the cross-complaint, although no process was issued thereon and no answer was filed thereto.
The general verdict finds all the defendants, appellant and appellees, equally and jointly liable without any distinction, modification, or conditions as to whose property should be first exhausted. The judgment is properly in accordance with the verdict. There was no motion to have the jury find specifically on the issue of the cross-complaint, to modify or change the judgment, for a new trial or for a venire de novo.
10. The record in this case presents an anomalous situation. It indicates that appellant was primarily liable as surety on the note sued upon by Milligan and that appellees were regular indorsers. The instructions and interrogatories clearly indicate that the issues of appellees’ cross-complaint were submitted to and tried by the jury. The judgment rendered did not give to appellees the relief they were entitled to obtain, but the issues presented the question of their rights, and, having been once tried and determined, they cannot be again litigated. Armstrong v. Harshman (1878), 61 Ind. 52, 54, 28 Am. Rep. 665. To attempt to do so in this suit would be a collateral attack on that judgment and would be unavailing. The judgment in the former case should have covered the question of appellees’ secondary liability, as against appellant, but it does not do so, and we must accept it as it is. Starkey v. Starkey (1905), 166 Ind. 140, 142, 76 N. E. 876. From this it follows that under the judgment rendered in the original suit appellant and appellees are primarily liable, and payment of the judgment by appellant entitled her to enforce contribution against appellees.
The judgment is reversed, with instructions to sustain appellant’s motion for a new trial, to sustain the demurrers aforesaid, and for further proceedings not inconsistent with this opinion.
NOTE.: — Reported in 116 N. E. 433.