Smith v. Harrison

33 Ala. 706 | Ala. | 1859

STONE, J.—

The complaint in this case does not claim that Scott, the payee of. the note, ever acquired any interest in the judgment recovered in the circuit court of Autauga, in favor of Maull, for the use of Givhan, by virtue of any contract, or assignment of that judgment to him. The only right he asserts is that which, by operation of law, springs out of the payment by him of the judgment recovered on his endorsement. The present plaintiff claims that Scott transferred the said claim against the said Bolling Smith to him. This amounts to nothing more than a statement that Harrison has succeeded to all the right in said claim, which Scott had previously owned.

This, then, being the extent of the claim to the judgment asserted by Harrison, it results that, independent of the provisions of the Code, he could only claim to be subrogated to the rights which Maull, to the use of Givhan, had acquired against Smith by virtue of that judgment. Subrogation is a doctrine of the court of chancery, and can not be enforced in a court of law.—See White & Tudor’s Leading Cases in Equity, 65 Law Library, 91-3; Houston v. Br. Bank, 25 Ala. 250; Lamkin v. Phillips, 9 Porter, 98; Lyon v. Bolling, 9 Ala. 463 ; Knox v. Abercrombie, 11 Ala. 997; Hogan v. Reynolds, 21 Ala. 56; Bartlett v. McRae, 4 Ala. 688.

By section 2129 of the Code, it was not intended to obliterate the distinction between common-law and equity jurisdiction.—See Pickens v. Oliver, 29 Ala. 528-35. True, it authorizes a party who is really interested in a promissory note, bond, or other contract for the payment of money, express or implied, although he has not the legal title to the same, to maintain an action thereon in his own name. We have no authority to extend its provisions, so as to take in matters of contest and litigation, which before its enactment were cognizable exclusively in courts of. equity.

Having attained these conclusions, we might content ourselves with the declaration, that the complaint in this record fails to show that the plaintiff is “ the party really interested ” in the judgment, in the sense in which the Code employs that term. We prefer, however, to place our opinion on a different principle.

[2.] There are authorities which hold that a judgment is a contract:—2 Bla. Com. 465; McGuire v. Gallagher, 2 Sandf. Sup. 402; Dobson v. Pearce, 1 Abb. Pr. Rep. 97; Martin v. Kenara, 11 How. Pr. Rep. 567; Cameron v. Young, 6 How. Pr. Rep. 372; Dobson v. Pearce, 1 Duer, 142 ; Ivey v. Martin, 2 Duer, 654.

Mr. Addison, in his work on contracts, says: “Contracts by matter of record are contracts acknowledged in open court before an officer of the court, and recorded in the presence of the party making the acknowledgment. * * Contracts by statutes merchant and statutes staple are contracts of record,” &c.—Addison on Contracts, 2.

In Keith v. Estill, 9 Porter, 669, this court, in construing another statute, said: “Although the word contract may, in its most enlarged sense, include a legal liability arising on a judgment, from which the law implies a contract or promise to pay; yet it must be conceded, that this is a very recondite and remote sense of the term, and very far removed from its popular signification.” It was ruled, that the term contract in that statute did not include a judgment.

So, under section 2129 of the Code, we hold that judgments are not included in the term, “ other contract, express or implied, for the payment of money.” To hold otherwise, would probably lead to embarrassments in proceedings in garnishment, trials of the right to property, &e.

[3. The complaint in this case is, then, a complaint on the promissory note, the right to which had revested in Scott on his payment of the judgment rendered on his endoi’sement. The recovery of the several judgments, and the payment of the latter, were but links in the chain of facts which supported the plaintiff’s action—necessary to be averred and proved ; but the cause of action stated in the complaint is the note of Smith, not the judgment which Maull for the use of Grivhan recovered upon it.

[4.] The plea of the statute of limitations of six years was a good and valid defense to the plaintiff’s complaint, and the circuit court erred in sustaining the demurrer to it.

[5.] The tenth plea was worthless, without an affidavit óf its truth.—Buie of practice adopted January term, 1853, rule book, p. 3.

Judgment of the circuit court reversed, and cause remanded.