Hunt v. Adamson

4 Ind. 108 | Ind. | 1853

Davison, J.

Debt by the appellee against the appellant.

The declaration alleges, inter alia, that on the 2d of February, 1836, the said Basil Hunt and one Miles Hunt, executed their joint promissory note to Griffin and Luckey for 315 dollars and 25 cents; that after the note became due, viz., on the 10th of September, 1840, at a regular term of the Randolph Circuit Court, Griffin and Luckey recovered a judgment on said note against Miles Hunt, for the amount of the note and interest then due; that before the term at which said judgment was rendered, Grfin and Luckey had sued out a writ against Miles Hunt and the said Basil Hunt, which was, by the sheriff of, &c., returned executed on Miles Hunt, and not found as to Basil Hunt; which return was, prior to the taking, of said judgment, entered upon the records of said Court; that on the 9th of January, 1847, Griffin and Luckey assigned the note to the said Adamson; and the note is still unpaid, &c.

Demurrer to the declaration overruled. Judgment for the plaintiff below.

The appellant contends that the note, as to him, was extinguished by the judgment against Miles Hunt.

At common law, where two persons are jointly liable for a simple contract debt, a judgment against one is an extinguishment of the debt as to the other.

. There is, however, a statutory provision which enacts that “when any writ shall be returned ‘executed’ as to one or more defendants, and ‘not found’ as to others, the plaintiff may suggest such return upon the record, and proceed to final judgment and execution against the defendants upon whom the writ has been ‘ executed,’ and may, at any time thereafter, proceed against those ‘not found,’ by action against them jointly or severally.” R. S. 1843, c. 40, s. 31. This case is within the letter of the section just recited. The writ had been returned “ executed” as to Miles Hunt, and “not found” as to Basil Hunt, the defendant below; and a suggestion to that effect had been made upon the record. The holder of the note was, therefore, expressly authorized to proceed against him in this action.

T. J. Sample, for the appellant. D. Kilgore, for the appellee.

We are referred to Nicklaus v. Roach, in this Court, November term, 1851 ⁽¹⁾. In that case Dapput, one of the partners of the firm of John Nicklaus & Co., had been sued on a note given by him for a partnership debt, and a judgment was obtained against him on the note. Nicklaus, the other partner, subsequently executed a note for the same debt, and was then sued on his note. The Court held that the recovery of a judgment against Dapput for the partnership note, discharged Nicklaus from all liability for that debt. It is evident that the case referred to is in no respect applicable to the one before us. No joint action had been commenced against the partners; consequently, there was no return of “not found” as to Nicklaus. We think the demurrer was correctly sustained.

Per Curiam.

The judgment is affirmed, with 6 per cent, damages and costs.

(1) 3 Ind. R. 78.