Hyde v. Rogers, 59 Wis. 154

59 Wis. 154 | Wis. | 1884

The following opinion was filed October 23, 1883:

TayloR, J.

It is evident that upon the findings of fact the plaintiff was not entitled to the relief demanded in his complaint. In order to entitle the plaintiff to the relief demanded in his complaint, it was necessary for him to show either that the judgment had been in fact paid and satisfied by the other defendants, or by some of them,'or that he stood in the relation of surety on the note upon which the judgment was rendered, for the other defendants in the judgment or some of them, and that such fact was known to the plaintiff; that, knowing such fact, he had issued an execution upon the judgment, and such execution had been levied upon sufficient property of the other defendants, towards whom the plaintiff held the relation of surety, to satisfy the same, and that, after such levy having been made, he released such property so levied upon and ordered the execution returned unsatisfied.

It is a well-settled rule that the judgment creditor, having a judgment against several defendants, may direct the officer holding the execution to make the amount of the same out of the property of such of the defendants as he may see fit to proceed against. Smith v. Erwin, 77 N. Y., 466; Root v. Wagner, 30 N. Y., 17; Walters v. Sykes, 22 Wend., 566; Gorham v. Gale, 7 Cow., 739; Corning v. Southland, 3 Hill, 552; Crocker on Sheriffs, sec. 407; Ereeman on Executions, sec. 271; Herman on Executions, 209-10. Of this rule the defendants, who, as between themselves, are equally bound to pay the debt, cannot complain. As between them and the judgment creditor each is bound to pay the whole debt, .and it is no ground for complaint that the creditor may see fit to collect the debt out of the property of one and not out of the property of another. The mere seizure of the property of one of such defendants does not pay or satisfy the judgment, and if the property seized is released and returned to the possession of the owner at his request, it is clear that he cannot set up such seizure as a payment or satisfaction of the judgment. Freeman on Judgm., sec. 475; Herman on Executions, 253-257; Smith on Sheriffs, 340, 341, and notes; Crocker on Sheriffs, sec. 432; People v. Hopson, 1 Denio, 574; Peck v. Tiffany, 2 N. Y., 451; U. S. v. Dashiel, 3 Wall., 688.

An exception to this rule is made in favor of a defendant w'ho stands as surety for the other defendants or some of them; and when such fact is known to the judgment creditor, and the property of the defendants, who, as principal debtors, ought to pay the debt, has been seized upon the execution, he cannot voluntarily release such levy and then resort to .the property of the surety. In analogy to the rule which releases the surety by an extension of time of payment to the principal debtor, the release of such levy works as an extensibn of time of payment to such principal debtor, and the surety is thereby released; and the other rule which prohibits the creditor from releasing any security he may have in bis hands received from the principal debtor, without the consent of the surety. Farmers & Mechanics' Bank v. Kingsley, 2 Douglas (Mich.), 379, 402, 403; Mulford v. Estudillo, 23 Cal., 94; People v. Chisholm, 8 Cal., 30; Finley v. King, 1 Head, 123; Herman on Executions, 255, sec. 176; Herman on Judgm., 501, sec. 475; Howerton v. Sprague, 64 N. C., 451; State Bank v. Edwards, 20 Ala., 512; Dixon v. Ewing's Adm'r, 3 Ohio, 280; Comm. Bank v. Western Reserve Bank, 11 Ohio, 444; Phares v. Barbour, 49 Ill., 370; Thomas's Ex'r v. Cleveland, 33 Mo., 126; Mayhew v. Crickett, 2 Swanst. Ch., 185.

The court has failed to find that the appellant stands in the relation of surety to the other defendants. This fact lies at the foundation of the plaintiff’s claim to be released from the payment of the judgment. The appellant did not ask for a finding in the court below, in his favor upon that point. He contented himself with excepting to the findings made by the. court, but made no request for any other findings. It is doubtful, therefore, whether on this appeal we ought to look into the evidence for the purpose of ascertaining whether such fact was proved. Nor is there any finding that the judgment was paid by the other defendants. There is nothing in the findings which cari be made the basis for a judgment in his favor.

If we look into the evidence contained in the record-, we are unable to say that the preponderance of evidence shows that the appellant was the surety of the other defendants, nor that the judgment was paid by the other defendants; nor is there any evidence tending to show that the plaintiff bank had any knowledge that the appellant was an accommodation maker of the note upon which the judgment was rendered.

Whether the property levied upon by virtue of the first execution was the property of the firm of F. M. Brown & Co. is, as the case now stands, wholly immaterial. If the plaintiff’s rights in this case depended upon that finding, we might be inclined to overrule the finding of the learned circuit judge upon that point.

The finding that the defendant Isaac Brown was not a member of the firm of E. M. Brown & Co., for the purposes of this action was probably a mistake, as the judgment was obtained against him. as a member of such firm, and he cannot in this action dispute that judgment. These mistakes of the learned circuit judge — if they are mistakes — do not help the appellant’s case. Admitting that they were both fairly established by the evidence, still the judgment of the circuit court dismissing the complaint was right, and must be affirmed.

By the Court.— The judgment of the circuit court is affirmed.

Upon a motion for rehearing it was contended, on behalf of the appellant, that the rule that a judgment creditor may direct the officer holding the execution to make the amount thereof out of the property of such of the defendants as he may see fit, is not applicable to this case. After levy upon the property of one joint debtor a creditor cannot countermand the levy so as to seize the property of the other debtor. So far as the rights of third persons are concerned, the levy upon goods is a satisfaction to the extent of their value, unless the plaintiff is deprived of the benefit of his levy without any fault of his. Herman on Executions, secs. 171, 176; Freeman on Judgments, sec. 475; Lyon v. Hampton, 20 Pa. St., 46; Cathcart's Appeal, 13 id., 422; Dean v. Patton, 13 Serg. & R., 345; Smith v. Hughes, 24 Ill., 270; McIntosh v. Chew, 1 Blackf., 289; Stewart v. Nunemaker, 2 Ind., 47; Law v. Smith, 4 id., 56; Barrett v. Thompson, 5 id., 457; Lindley v. Kelley, 42 id., 294; Frank v. Brasket, 44 id., 92; Ex parte Lawrence, 4 Cow., 417; Green v. Burke, 23 Wend., 501. The general rule is applied to sureties in F. & M. Bank v. Kingsley, 2 Doug. (Mich.), 379; Mulford v. Estudillo, 23 Cal., 94; Finley v. King, 1 Head, 123; Dixon v. Ewing’s Adm'r, 3 Ohio, 280; Comm. Bank v. W. R. Bank, 11 id., 444; Ferguson v. Turner, 7 Mo., 497; Smith v. Rice, 27 id., 505; Bank v. Rogers, 13 Minn., 407; to subsequent judgment creditors in Hunt v. Breading, 12 Serg. & R., 37; and to a principal, where the goods of his surety had been levied upon and released, in People v. Chisholm, 8 Cal., 30; Kershaw v. Merchants' Bank, 7 How. (Miss.), 386. See, also, McChain v. McKeon, 2 Duer, 645. And there is no authority for limiting the application of the rule to such co-defendants as are sureties. The defeated party has nothing to do with the findings but to except to them after they are made and filed. If the question of surety-ship is material in this case, the fact that it was not covered by the findings and not passed upon by the trial court ought to be a sufficient reason for reversing the judgment and remanding the cause for a new trial.

The motion was denied January 8, 1884.