Seevers v. Hamilton

| Iowa | Jun 17, 1858

Stockton, J.

— It is no obstacle to the right of the plaintiff to recover, that the suit against Downing was prosecuted in the name of Trotter, as plaintiff. The notes on which the suit was brought, were payable to bearer, and the action upon them, by Trotter, in his own name, was susceptible of explanation. It is shown that it was so 'brought, to obviate the necessity of a bond for costs by Mrs. Adamson, she being a non-resident of the State. We cannot say that such a step is unusual among attorneys who have claims sent to them from a distance for collection; or that it is so out of the usual and proper course of proceedings, as to subject them to the charge, or to the consequences of a conversion. However this may be, it is shown in the present instance, that there was neither in fact nor intention, any conversion by Trotter, because the money received by him on the judgment, was immediately paid to defendants.

It is urged, as an objection to the right of the plaintiff to recovex-, that the notes on Downing, were the property of the administrator of Adamson; that the administrator and heirs were entitled to the proceeds of the judgment; and that the widow, by taking possession of the notes, became an executor de son tort. We think the defendants are not exxtitled to make this objection, and it comes from them with a very bad grace. Ti’otter received the notes for collection from the widow, and for all the purposes of this suit, he was entitled to regard her as the rightful owixer of them. Having received the money from Trotter, the defendants cannot resist his right to recover it back, on the ground that the widow had no right to the notes, or to the proceeds of the judgment against Downing.

The right of Selim Downing to recover from Trotter, was determined by the coxxrts of Kentucky, and the question with us is, not whether it was correctly determined, but whether he did in fact recover or not. If he did, and Trotter paid the judgment, we cannot, in this action, inquire whether the decision was correct or not. So, the right of Trotter to institute proceedings against William Downing, to have his interest in the dower estate of his mother, subjected to the payment of the judgment against him, is not for us a matter of inqxxiry. He did institute such proceedings, and recovered the money, which he applied in satisfaction of the judgment; and the defendants, by receiving the money from him, after he had so x-ecover-' ed it, recognized and ratified his doings, so far as they can be considered as having notice or knowledge of them.

It is also objected by defendants, that the payment of tbe money to them by Trotter, was a voluntary payment by him, with a knowledge of all the circumstances; and such being the case, the money cannot be recovered back. We do not concur in this view. Trotter, when he received the money, was under obligations to pay it to defendants, and he could, in no way that we see, have avoided his liability, except upon a claim and showing, that it should rightfully go, as has been suggested, to the administrator of Adamson, and not to his widow. But, having received the notes from the widow, if no other claim was interposed, Trotter was bound to pay it over to her when collected. It was money had and received by him for her use.

The remaining objection made by defendants is of more importance, and, we think, was good cause of demurrer. The plaintiff does not aver or show that he is able, nor does he offer, to transfer to defendants, the claim upon Downing, neither in the shape of a judgment against him; nor otherwise. Mrs. Hamilton had placed in Trotter’s hands the notes — the evidence of her demand upon Downing. These notes were merged in the judgment, which has been satisfied of record. Mrs. Hamilton is entitled to be made whole ; the notes cannot be returned to her; the judgment has been satisfied; and even if the satisfaction had been set aside, and the judgment were in full force, it is in Trotter’s name, and subject to the control of his administrator. Before the plaintiff can recover of defendants the money paid them by Trotter, this judgment must be transfex-red to them in full force. Upon a showing that Trotter has been required to refund to Selim Downing, the money received from the sale of William Downing’s interest in the dower estate of his mother, the plaintiff may be enabled to have the satisfaction entered of record set aside, or he may, in some appropriate proceeding, recover another judgment against William Downing.

This duty, we think, devolves upon the plaintiff. Mrs. Hamilton has once paid Trotter for his sex-vices, as her attorney in procuring the judgment, which, without any fault of hers, and without her procurement, but by the action of said Trotter, lias been extinguished. It would be a hardship on her, should she be required to pay a second time for the services of an attorney to revive or reinstate this judgment. She should not, in our opinion, either bear the burden or run the risk of such renewal. She is entitled to be made whole; she must be placed in a position to enforce the collection of her claim upon William Downing, if he is of sufficient ability to pay it.

Upon the payment of the judgment against him by Selim Downing, Trotter had his recourse, either against William Downing, whose indebtedness to Adamson had been extinguished by the satisfaction of the judgment against him in Trotter’s name, or against the present defendants, to whom the money collected had been paid. We hardly think the plaintiff should be required, first, to seek indemnity from William Downing, and to enforce payment from him. He may resort, first, to his action against defendants, to whom he had paid the money. They are the ones principally and ultimately responsible to plaintiff’s intestate. But to entitle him to recover, it must be shown that the satisfaction of the judgment against Downing is set aside, or that there is, in some form, a judgment against him, subject to defendants’ control.

We are therefore of the opinion, that the district court erred in overruling the demurrer, for the cause aforesaid, and the judgment is reversed.