Porter v. Gile

44 Vt. 520 | Vt. | 1872

The opinion of the court was delivered by

Ross, J.

The testimony introduced by the defendant Gile, without objection from the plaintiff, tended to show that Asa T. Barron claimed to own tbe judgment in suit, and was prosecuting this suit in the name of Porter for his own benefit. That the testimony offered to prove the ownership of Barron would not have been admitted, if objected to, does not show that it was not to be weighed by the jury when admitted without objection. If the plaintiff allowed inadmissible testimony to be introduced, which tended to establish a fact, the defendant had the right to have the testimony considered by the jury, for, had the plaintiff objected to its admission, and the court had excluded it, the defendant might have supplied its place with unobjectionable testimony. If Barron owned the judgment in suit, which fact the defendants’ testimony tended to' establish, his admissions in regard to the person of whom he obtained it would be evidence against him. His admissions tended to establish the fact that he obtained the judgment of Stephen S. Downer, one of the defendants, and one of the co-judgment debtors, and consequently that Downer had once owned the judgment. But Downer could not become the owner of the judgment in any manner so that he would have the right to collect it in the name of Porter of the other co-judgment debtors. As soon as Downer became the owner of the judgment the judgment was satisfied and extinguished. Allen v. Ogden $ Catlin, 12 Vt., 9. Downer’s remedy against his co-judgment debtors would not be by suit on the judgment, but for contribution towards the money paid by him to extinguish the judgment. He could convey no greater rights to Barron than he himself could have asserted. Inasmuch as the testimony introduced by the defendant tended to establish that Downer had once owned the judgment in suit, the defendant had the right to have it submitted to the jury, with instructions that if they found it sufficient to establish the fact that Barron was the plaintiff in interest, and purchased the judgment in suit of Stephen S. Downer while he owned it, the plaintiff could not recover.

The judgment of the county court is reversed and the cause remanded.