35 Ind. 88 | Ind. | 1871
This action was brought ■ by the appellee against the appellant, before a justice of the peace, for contribution, The defendant answered, first, the general denial;
.Three questions are presented by the assignment of errors: first, as to the sufficiency of the complaint; second, as to the sufficiency of the second and third paragraphs of the answer; third, as to the correctness of the ruling of the .court in refusing a new trial.
The complaint is as follows: “ State of Indiana, Greene county, ss. In the court of George W. Beard, justice of the peace of Center township. Lemuel B. Sexton v. John G. Sexton.
Lemuel B. Sexton, plaintiff, complains of John G. Sexton,
“$247.18. Bloomfield, January ioth i860.
On or before the 25th day of December, i860, after date, we promise to pay to the order of Hance Stalcup’s heirs two hundred and forty-seven dollars and eighteen cents, for value received, without any relief whatever from valuation, appraisement, or stay laws, with interest from date.
Lemuel B. Sexton.
John G. Sexton.”
Indorsed on the note are sundry payments, not showing, however, by whom they were made.
It must be presumed that the makers of this note were both principals, in the absence of anything alleged or shown to the contrary. It might have been alleged and shown, if such was the fact, that one was security for the other. But without anything alleged or proved to the contrary, we must regard the makers as both being principals, and equally bound to pay the note. It follows, that if one of them paid the whole amount of the note, or more than his moiety thereof
The next point is as to the sufficiency of the second and third paragraphs of the answer. The second was clearly bad. The mere fact that the defendant had been sued on the same damand once before is no bar to this action. In criminal prosecutions, when the defendant has been once in jeopardy he cannot be again prosecuted for the same crime. But that rule does not apply in civil actions. For aught that appears, the'former action was dismissed, or otherwise disposed of without any final judgment. The third paragraph of the answer, we think, was also bad'. There is no connection shown between the note which was indorsed by the plaintiff and defendant for Walker and the note filed with the complaint; and the fact that the mortgage was “ fully paid off” does not show a satisfaction of this claim. If it was designed to show by this paragraph that payment had been made of the claim for which this action is brought, the paragraph was unnecessary, as payment may be proved* in a suit instituted before a justice of the peace, without being specially pleaded. 2 G. & H. 585, sec. 34. The same matter was admissible as well without as with the paragraph of payment pleaded; and therefore it would not have been error if the demurrer had been improperly sustained to the third paragraph.
The only other question relates to the propriety of the action of the court in refusing a new trial.
The evidence shows that the payments made by the plaintiff on the note were made at the times stated in the complaint, except as to the last amount, which was not paid at all, but the plaintiff gave his own note therefor* and took up the joint note in 1861 or 1862.
One question is as to the period of limitation in such a case. The defendant insists that it is six years, while the plaintiff contends that the action is on the note, and that it is not. barred until after the lapse of the same time which would have barred the action of the payee on the note.
Whatever might have been the case had the joint note been merged in a judgment, and the payment made on or in satisfaction of the judgment, under 2 G. & H. 309 and 310, secs. 676 and 679, we are of the opinion that this must be regarded as an action for money paid by the plaintiff for the benefit of the defendant, not based on any contract or promise contained in the promissory note, but on the implied contract, which the law makes, on account of the plaintiff having paid more than his equal share of the joint indebtedness. It is true that the note is a" material part of the evidence necessary to a recovery, but it is not of itself sufficient to make out a case. It shows the relation in which the parties stood to each other with reference to the contract, but is not the cause of action. The action was commenced on the 9th day of October, 1869, and the payments made by the plaintiff were all made more than six years before that time. We think, as this was merely an action for money paid, that it was barred in six years from the time of the payment. This is not a case where the equitable doctrine of subrogation is applicable, or sought to be applied. See Neilson v. Fry, 16 Ohio St. 552; 1 White & T. Lead. Cas. 78, et seq.
The other facts in the case make us quite willing to apply the bar of the statute to the claim, and we think fully justify the policy of such enactments.
The judgment is reversed, with costs, and the cause remanded, with directions to the common pleas to grant a new trial.
Buskirk, J., having been consulted as counsel, was absent.