Spears v. Clark

Perkins, J. Assumpsit by the assignee against the [297] assignor of a promissory note. Plea, the general issue. Judgment for the plaintiff. The evidence is upon the record. The first point made in this Court is, that due diligence was not used in attempting to.recover the money from the makers of the note. It appears that judgment was obtained against them at the August term, 1839, of the Tippecanoe Circuit Court, which was the first term after the assignment of the note to the plaintiff That assignment, we should remai’k, is without date; and the appellant, the defendant below, contends that one or more terms of the Court intervened between the assignment and the judgment against the makers. But the evidence to the fact that the judgment was recovered at the first term after the assignment, is as strong now as it was when the cause was before this Court in 1844; and it was then held sufficient to justify the jury in so finding. Spears v. Clark, 7 Blackf. 283. It further appears that said August "term at which the judgment against the makers was obtained, was not adjourned until the 7th of September following; that, on the 21st of said September, a fieri facias on the judgment was sued out of the clerk’s office, and, on the 24th of said month, was placed, by the clerk, in the hands of the sheriff of the county, who returned the same, “ no goods or chattels, lands or tenements,” &c., and that there were on the docket of. the Court, at said August term, 371 causes. Samuel Hoover, the clerk, testified, that he thought the costs could not have been taxed and the executions issued on all the judgments rendered at said term before the 21st of September,. 1839; that he was in the habit of issuing executions in the order in which praicipes for them were filed, and was also in the habit of consulting the order in which judgments were rendered; and he would have issued an execution on the judgment against the makers of the note in question on the day said judgment was rendered, had he been required to do so, but thought no prcecipe for an execution had ever been filed. It was proved that an execution, had it been issued on the day [298] of the adjournment of said August term of the Court, on the judgment against the makers of the note, would have been unavailing, as they then had no property subject to it. Such was, substantially, the evidence in regard to diligence. It is contended that in a suit by the assignee against the makers of a note, due diligence requires that an execution should be issued on the judgment against them as soon, at least, as the day following the rendition, whether that day fall in term-time or vacation. All the decisions of this Court bearing upon the subject, are to the contrary of this proposition, and they are sufficiently numerous to settle the rule upon authority. That rule is, that execution in such cases may be delayed till a reasonable time for the issuing of execution has elapsed after the adjournment of the term of the Court at which judgment is rendered, unless some special cause be shown to exist, making it the duty of the party, as an act of good faith, to issue it earlier. For example: If the assignor could show that the maker was about to put his property bejmnd the reach of execution, or to become insolvent, and that he had notified the assignee of the fact, or that he otherwise knew it, and that said assignee had, nevertheless, neglected to apply for the issuing of an execution, whereby the judgment that otherwise could have been collected, had been lost, he would establish a want of due diligence in that case. We may properly notice some of the decisions from which the foregoing proposition is deduced: In Hanna v. Pegg, 1 Blackf. 181, “ a fieri facias was issued within a few days after the term in which the judgment was rendered;” and it was held, prima facie, sufficient diligence. In Bishop v. Yeazle, 6 id. 127, execution was delayed over six months, and it was held that, unexplained, it was unwarrantable negligence. In Dorsey v. Hadlock, 7 id. 113, judgment was rendered on the 25th of April, and execution was issued on the 18th of May following, and it was held that, prima facie, due diligence was shown. When the term closed does not appear. Clark v. Spears, 8 id. 302, was the pre [299] sent case, then before the Court on demurrer to the declaration. The facts then alleged in the declaration were substantially those now proved on the trial below, and set out above in this opinion, and they were held to show, prima facie, due diligence. The Court remarked: “If the defendant can show [on a trial] that he sustained a loss by the delay in the issuing of the execution, he will have the right to do so.” He failed, on the trial, to show that he had sustained loss by such delay. In Nance v. Dunlavy, 7 id. 172, judgment was rendered on the 15th of March, and it was “held that the assignee could not, during that month, be charged by the assignor with laches for not having taken out execution.” Black v. Wilson, 7 id. 532, is supposed to be in conflict with these cases, but it is not. In that case, no suit had been instituted against the maker of the note. The question, therefore, of diligence in the prosecution of a suit could not arise. And where the assignee assumes to dispense with a suit against the maker, he is bound to prove insolvency in the maker to an extent that would render a suit wholly unavailing for the recovery of any pai’t of the debt. Hardesty v. Kinworthy, 8 id. 304. It was held, in Black v. Wilson, that such insolvency was not shown in that case. It is next objected that the allegation in the declaration that the note was assigned at Lafayette, was not proved. If it was necessary that that allegation should be proved, we think it was sufficiently done. The note is dated at Lafayette. The assignments on it are not dated as of any place. The suit and judgment against the makers were at Lafayette. The suit against the indorser and service of process on him were at that place, and the testimony positively shows that several of the parties resided there. We think the presumption was raised that the indorsements were made at that place. At all events, the assignments were given in evidence on the trial, without objection to them particularly pointed out; and, at that time, the rule of decision was, that unless particular objections were specified, the case stood as if [300] no objection was made. This rule is decisive of tbe point under consideration. Z. Baird and J. M. Reynolds, for the appellant. R. A. Chandler, for the appellee. The next point made is, that the insolvency of the makers was not sufficiently established. A return against said makers of no property, was made on the 24th of September, 1839, and this suit was commenced against the assignor on the 9th of March, 1843. It is contended that said makers should have been proved to be insolvent when this suit was commenced. We think the plaintiff in the Circuit Court, having shown that he had used due diligence by prosecuting the makers of the note to insolvency, was not bound to prove that they continued insolvent to the time of suing his assignor. Whether the assignor could have shown, in bar of the suit, that the makers had acquired property subsequently to the return against them of no property, we need not stop now to ascertain. The note, an indorsement of which is sued on, is as follows: “Lafayette, April 16,1838. Seven months after date, I promise to pay to the order of George M. Marshall, five hundred dollars, for value received. Samuel Taylor, Taylor and SmithT The declaration avers that Samuel Taylor, and Taylor of the firm of Taylor and Smith, were one and the same person; and it is urged that that averment was not proved. If it was necessary, under the issue, that it should have been, we think it was done. The record of the suit and judgment at law against said Samuel Taylor and said Smith, charging them as being the persons who made the note, was in evidence; and Taylor himself was examined as a witness, and spoke, in his testimony, of Smith and himself, the defendants in said judgment, as the makers of the note, and mentioned no other person. This was sufficient. Per Curiam. The judgment is affirmed, with 5 per cent. damages and costs.