Kiser v. Winans

Hanna, J. The appellees moved the Court, at the May term, 1860, for an execution against the property of the appellant, upon a notice which set forth that, on the 10th of August, 1842, in said county, one Druses Nichols recovered a judgment against one Comparet and said appellant; that said judgment was afterwards assigned to one Winans, now deceased, and of whose estate appellees were appointed administrators in 1849; that on the 27th of June, 1847, said judgment was revived against said appellant, said Comparet having departed this life. The notice was demurred to and the said demurrer overruled. Thereupon an answer of four paragraphs was filed. 1. Denial. 2. Payment. 3 and 4. Set up at length the fact [429] that judgment had been recovered, and the circumstances leading to the belief that Comparet paid said judgment before he died, which was in 1845; and charges that he did so pay it, and that Nichols fraudulently assigned it; that said Kiser was a surety only in the note upon which the judgment was originally obtained; that at the time of said revival, in 1847, he did not know of any evidence by which he could prove the payment of said judgment; nor was he able after the exercise of due diligence to discover any; that he but recently, discovered said evidence, and was preparing to institute proceedings, &c., when the notice was served, &c. The facts are set up by way of cross-complaint, and relief prayed, &c. These two paragraphs were sworn to. To them a demurrer was sustained. On the trial the defendant offered to prove the payment by Comparet before his death; the evidence was excluded, and perhaps properly, under the issues as they stood, as under a simple plea of payment, it may be that-evidence of payment before the rendition of the judgment should not have been received. But the demiurrer was wrongfully sustained to the third and fourth paragraphs of the answer. One of the first causes for granting a remedial writ of injunction, and among the most ordinary, 'is to stay proceedings in courts of law. Eden on Injunctions, pp. 1, 2.; 1 Mad. Ch. Pr. 106. That a judgment is not conclusive, in equity, as to payments made before its rendition, but the evidence of which was not then available after the use of the utmost diligence. See 2 Story’s Eq., § 879. Under the code our pleadings assume the forms of chancery proceedings. It is not clear that the ruling on the demurrer to the notice was right, as such notice did not.state that the judgment was not paid, except as in the affidavit accompanying it, nor state how much of it was due. See Bennett v. Wainwright, 16 Ind. 211; Price v. The Grand Rapids, &c., R. R. Co., 13 Ind. 58. But however this may be, the record professes to contain all [430] the evidence, and there was none upon the point of th.e amount due upon said judgment, other than the record of said judgment and the affidavit upon which the notice was based, As to this, see authorities last above cited. D. IP. § John Colerich, for the appellant. Per Curiam. The judgment is reversed, with costs. Cause remanded.