Rees v. Heyser
404 N.E.2d 1183
Ind. Ct. App.
1980
Check Treatment

*1 an habitual traffic of- adjudged had been prohibiting opera- his

fender was in effect was

tion of a motor vehicle driving certified rec-

clearly revealed Cf., State, (one supra whose Green v.

ord. suspended

driving privileges driving

thereby prohibited from a motor highways). Fur- upon public

vehicle

thermore, testimony substanti- officers’ the fact that Weaver’s license

ated

suspended. of the trial court is af-

firmed. J., SULLIVAN, J.,

BUCHANAN, C.

concur. (Defendant Appellant REES,

Joseph

Below), HEYSER, Appellee H.

John Below). (Plaintiff 1-1079A285.

No. Indiana,

Court of District.

First 29, 1980.

May 7,1980.

Rehearing Denied *2 Keller, Harlan, Schussler,

Bertwin J. Kel- Boston, Richmond, ler appellant. & McDaniel, Richmond, Marlin K. Charles Weaver, Reeder, Indianapolis, G. Johnson & appellee. ROBERTSON, Presiding Judge. Heyser (Heyser) brought John H. an ac- (Rees), against Joseph alleging tion R. Rees that Rees was indebted to ($15,000). sum of fifteen thousand dollars The trial court entered in favor Heyser, appealed. ap- and Rees has On peal, alleges that the action is barred by judicata, given by the check 26, Heyser to Rees on December 1968 was in reality a loan since there was no ade- consideration, quate finally, action was not filed. affirm. facts, record, as revealed show $15,000 Heyser’s that Rees withdrew from account, permission, with his bank De- pur- cember 1964 to June pose permit Heyser buy of this was to part Burger into of a Chef restaurant busi- Cincinnati, Ohio, being ness in that was venture, formed Rees. The eventually bankruptcy. forced into Al- owner, though Heyser part was to be a he any never received stock or other evidence ownership. to secure this obli- gation, note was later exe- cuted between and his wife and February Rees and his wife on 26, 1968, Heyser On December exchanged checks for at Rees’s re- quest, consequences because of certain tax might prove favorable to Rees. 449; Legion N.E.2d Evansville American complaint was filed on A White, (1967) seeking payment and his wife Home Ass. v. Judgment was rendered promissory note. also 230 N.E.2d 623. See Matter of his wife on that claim. in favor of Rees and Apple, Ind.App., Estate from Rees judge found that the check Blake, (1979) N.E.2d Blake v. Ind. 1968 was App., 391 N.E.2d 848. *3 obligation rep- payment upon as in full While recognize cognizant we and are by judgment The made resented the note. precedent, this we find the used $15,000 from Heys- no mention of the check Sisson, by Judge Remy (1924) in Jordan v. er to Rees. 128,141 Ind.App. 82 quoted N.E. 881 and in following judg- than one month Less County Board of Commissioners of Adams case, Heyser brought ment in first Gibson, (1948) 633, v. State ex rel. 226 Ind. check which action based on persuasive applying 82 N.E.2d 891 as in 26, Heyser executed to Rees on December concept: above Judgment was entered in favor of 1968. every question might The rule that April 1978. The trial court litigated have been in a cause decided or check of December determined presumed will to have been decided promissory 1968 was for the every means that which was note, obligated still but Rees was issues, within the and which under the $15,000. Heyser on the check of The might proved, issues will be decision, reaching its declared that presumed adju- proved to have been consideration for the transaction existed [Emphasis dicated. added]. Heyser cancelling promissory virtue of at 226 Ind. at 82 N.E.2d 892. The much of Indiana’s law basis of Initially, recognized that it should be judicata supreme our on res emanates from separate Indiana allows two or more causes occurrence, opinion court’s in Town of Flora v. Indiana of action to arise from the same prohibit Corporation, 222 Ind. 53 judgment and that on one does not Service State, recognized a suit on the other. See Indiana N.E.2d wherein the court Highway Speidel, judica Commission v. State the two well defined branches of res (1979) Ind.App., 392 N.E.2d Illinois were and an ta. Those branches discussed Parks, (1979) Ind. Central Gulf R. Co. alyzed by Judge Buchanan in the recent App., 390 N.E.2d 1078. State, Highway case of Indiana State Com (1979) Ind.App., Speidel, mission v. 392 argues appeal Rees first the ac- judi N.E.2d 1172. The first branch of res 26, 1968, the check of December is tion on by the term “claim cata is characterized judicata. part, In Rees con- barred applicable when preclusion”. This will be failed rule on tends that the trial court in a there is a final on the merits because of its the merits of this defense case, complete which acts as a bar to a prior finding proper judgment was not the same claim be subsequent action on placed evidence. we determine into Since parties privity or those in tween the same action, judicata not bar this that res does branch or “issue with them. second procedural question we not reach the do particular when a preclusion” is prior judgment properly put is into how a adjudicated put into issue in a is issue judicata, Rees relying evidence. In on res subsequent on a different cause of ac suit which hold emphasizes line of cases parties or those in tion between the same judicata what that res embraces instance, them. In this determined, privity with every actually was but also binding on the issue is former decision might parties matter which the could or See, subsequent suit. parties in the See litigated in the former cause. e. State, Highway Commission Corp. v. Indiana State Community Point School g., Crown (and therein). Richards, Speidel, supra cases cited Fisher, (1870) 34 Ind. tests to the facts these apply, both re- preclusion issue of these is clear that first, judicata. quirements must be met. identi- by res As to action not barred branch, easily met. ty parties, The fact the first action preclusion the claim parties were in the note, and Rees’s wives while promissory was on the note, parties but not action on the based on the check second action was check, is not of substantial action on the judg the cause consequence to remove clearly first action ment requirement. requirement, The second only issue decided stated that estoppel is not met. mutuality of note in fact whether Heyser. The court paid Rees’s check Speidel, supra, Judge Buchanan effect of made no determination “[ejstoppel if the declared that mutual Additionally, Rees. Heyser’s check to prior adjudica taking advantage one transcript of the reading the evident from subsequently been bound tion would have *4 adjudi being claim trial, the first judgment gone the other prior had the the right to Heyser’s cated was require way.” N.E.2d at This fact, objected counsel to note. Rees’s In met, the the ment is because issue of not check the from introduction check from to December it no bear to for the reason had Rees litigated. Rees Had the trial was never Likewise, argument in ing on his the case. note, court, in on the found Rees the action the judgment in motion for support of a note, still on the then the issue to be liable again evidence, counsel defense stated 26, 1968 Heyser’s of December check to Heyser to not an from Rees was check decided, Rees have had to also been would time, at but issue before precluded any which later ac would cause of action.” “perhaps is another by Heyser. Consequently, tion there could any subsequent not in have been action preclusion claim branch which been Rees could have bound conjunction with the used subsequent this judgment, first and without Sisson, supra, it is Judge Remy in Jordan mutuality estop action there can be no of Heyser’s of check evident that the pel. to not within issues of Rees was Although may it first action. Therefore, the action on the check since causes, both preferable to consolidate original not action adjudicated judgment of clear the record from note, estoppel no there is collateral Rees’s solely was limited to first cause preclusion” or “issue as to issue. Con- note, nothing and decided liability on the sequently, preclu- since neither “claim Heyser’s Rees for regard with to check to preclusion” of sion” nor the “issue branch $15,000. Therefore, preclusion the claim judicata res are inapplicable. judicata res action, branch of Heyser’s it is clear that based Rees, 1968 check to December to the next turn second branch We judicata as a result of barred estoppel or “issue judicata, of res collateral Heyser’s first claim unfavorable decision earlier, preclusion”. preclu issue As noted based on the prior sion results when an issue decided in argues from subsequent case is in a case. next check put into issue gift is, was a mere in that it adjudication If it of the issue to himself the first and that in the was without consideration parties point will bind the as to repayment or time of require There are two was no interest subsequent suit. there essence, has issue asked this necessary application ments for the of established. interpret evidence and preclusion. par reweigh court identity The first of ties, estop light position. it in a more favorable his mutuality second is and the course, must, decline this pel. State, invitation. Highway Indiana State Com explicitly Speidel, supra citing Dayton v. trial court declared that mission v. gift to Rees was not a which must be made within the check from time though specific agreements with even statute of limitations date of the regard repayment interest or time of accept contract. We must also decline to Further, were made. the trial court deter- interpret this alternative. As we promisso- mined that the cancellation of the argument, procedure would allow for a ry adequate note was consideration for the lengthening of the statute of limitations. transaction. example, For if the demand made year, argument, the fifth as we view Rees’s appeal, It is well settled that on the demand would be since was upheld the trial court’s will be if original year period made within the six any legal theory. it is sustainable on Wal exchange. ques- from the date of the Rogler, Ind.App., lace v. 395 N.E.2d period tion then becomes within what Additionally, this court will not re party does a have to file suit. If the weigh questions the evidence or resolve witnesses; rather, credibility party years, we will receives an additional six then claim, affirm if there is sufficient evidence of example, the action on the in this has probative value to sustain the decision of suspended been years. for eleven It cannot Rogler, the trial court. Wallace v. supra; open to reasonable debate that such a Cross, (1979) Ind.App., Grad 395 N.E.2d parties, result would be detrimental to all record, 870. Based on the evidence in the including the must strive there probative is sufficient evidence of val truth, sort out the actually defeats the ue to sustain the trial court’s determination. purpose of the statute of limitations. We opine system unmanageable. such a to be Finally, Rees claims the action was not *5 timely applicable filed based on the six merely ap- an third alternative is year statute of limitations for not contracts plication alternative in which of his second writing. Ind.Code 34-1-2-1. Both Rees present- he asks to reweigh us evidence and that there concede is a lack of ed in order that the to determine demand Indiana case law as to when the statute of years following was not made within the six begins limitations to run on an unwritten exchange of checks on December repayment money contract for the of ab- 1978. We of course must decline this invi- any repayment sent definite terms of in the Rogler, supra; tation. Wallace v. Grad v. agreement. Cross, supra. ably argues Rees three alternatives as to why the action was not filed. We Due to the lack of Indiana case law note for clarification check was subject, appropriate on the for given to Rees on December 1968 and court to make a statement as to what rule suit was not filed until June 1975. we discern appropriate. most To restate First, urges adopt Rees us to appli- rule issue, we need to determine when the notes, demand, payable cable to written statute of run begins limitations to on an states statute of limitations promise money unwritten pay to when begins to run at the date of the instrument. repayment. there is no definite time for do, This we decline to because of the uncer- obligation, aOn demand the statute of limi tainty surrounding an unwritten contract begins tations to run from the date of the repayment. Whereas a written demand Washburn, (1979) loan. Akre v. 92 N.M. obligation rights evinces certain and duties Wold, (1970) 590 P.2d Johnson v. party, on behalf of an unwritten each con- Wyo., 475 P.2d 714. Under the facts of this repayment tract for often is nebulous and repayment given by of the check dependent solely upon goodwill of obliga to Rees was not a demand parties. obligation tion. The demand ran from Rees payor Secondly, urges adopt obligation Rees a rule to the bank. The of us to require less, that would to something a demand to commence back running limitations, of the statute of more indefinite. Finding proceedings be- research, impressed we are error our From low, all matters the trial court is in af- of the Court with firmed. v. Wilderness Stromblad of Oklahoma

Adventurer, Inc., (1978) Okl.App., 577 P.2d Judgment affirmed. Stromblad, the court was faced repay agreement money. NEAL, J., to an oral with concurs. was a claimed that it demand plaintiff

The YOUNG, J., opinion. dissents with requiring the statute limita- obligation, YOUNG, Judge, dissenting. begin to from the date tions to run respectfully I dissent. reviewing the rec- after ord, there was no evidence determined that would reverse trial I demand, payable the loan was grounds the statute of court therefore, declared stat- recovery. plaintiff, bars limitations begin to run until limitations did not ute of Heyser, issued a check for performance had reasonable a 26, 1968, not sue on the December but did Further, determined that lapsed. repay1 until implied-in-fact promise to one time is reasonable yeas majority over six later. light accrue, of fact be determined the trier Rees’ did not thus holds that claim begin disclosed did not of all circumstances the statute of limitations run, Twin Lakes Reservoir until had had reasonable time evidence. See also agree Bond, perform: 156 Colo. six I do Co. months. and Canal principle apply in the should P.2d 793. present case. a rule to be the We consider such Law Simpson, In L. Handbook by which to determine the proper manner Contracts, (West 1965) it ch. 3 p.46§ where of limitations in a situation statute the case of generally stated con- “[i]n promise pay an there is an unwritten date pay if no money, tracts repayment, time for there indefinite of a reason- fixed for the standard fore, guide expressly adopt it to Indiana promise time is not and the applied able courts. *6 pay immediately. This is not true also of negotiable instruments but non- present this rule to negotiable contracts.” following result. The we reach the writing obliga- Rees’ expresses That on December transaction occurred The same rule tion makes no difference. year of limitations would The six statute applies brought when suit is on common 27, 1974. The expired have 58 money law action for lent. See C.J.S. was on June present action filed 3a, (1948). Indeed Money p. Lent 878 § than after the stat This is less six months present appears suit to be one such action. expired with ute of limitations would Therefore, entirely barren of Indiana law this rule of reasonable time. out Wagoner v. precedent six months issue.2 whether Wilson, (1886) 108 Ind. 8 N.E. performance, tolling reasonable brought recover plaintiffs limitations an action to mon- running statute of they had to the defendants period. say ey that as a mat loaned cannot Consequently, a certain date and which the defendants ter of law it was not. defendants pay. fact must had refused trial court as finder of appeal alleged the trial courts re- error in affirmed. Brown, Walters, Stanley 2 v. 103 Ind. 147 2. Brown N.E. 1. See 594, 597; Money appears majority’s position. support 261 58 C.J.S. Lent N.E.2d inspection distinguishable (1948). closer On it 2b§ equitable involved the enforcement of an mortgage. grant a demurrer based fusal to that the indebted- any allegation

absence unpaid. The sued on was due and

ness recovery seeks a paragraph

court held “the money to and for use of advanced Money so in their business. ad-

defendants for,

vanced, stipulated be- unless credit is presently. From the facts stated

comes due complaint implied the law that the N.E. at 926.

money sued for was due.” 8 authority I

On the basis of this would began that the limitations to-

hold statute of Heyser’s money

run from the time came hands,

into Rees’ 51 Am.Jur.2d Limitations p. (1970),

of Actions § too late. filed suit Shipley RILEY, R. Alfred

Robert C. Endicott,

Richard

Defendants-Appellants, WEGNER, Beryl Moore David A.

Bernice wife, Moore, Mary E. husband

Plaintiffs-Appellees.

No. 1-1179A324. of Indiana. Court Baker, Giddings, Kenneth R. Lawrence D. 29, 1980. May Lebanon, for Peyton Giddings, & defend- ants-appellants. 16,1980. Rehearing Denied June Lockhart, Roland, F.

Paul G. Walter *7 Ruckelshaus, O’Connor,Indianap- Roland & olis, plaintiffs-appellees.

RATLIFF, Judge. OF THE CASE

STATEMENT Wegner, Plaintiffs-appellees Bernice A. Moore, Mary E. Moore Beryl David injunction complaint seeking an filed flooding which oc- damages arising from Wegner owned Mrs. curred on land defendants-appellants the Moores after Shipley, Alfred R. Riley, Robert C. altered a dam which Richard Endicott