Cooper v. Rush

HART, J., (after stating the facts). The circuit court held that the plaintiff’s cause of action was barred by the statute of limitations. The plaintiff sought to avoid the bar of the statute by alleging in his complaint that he had paid the judgment against himself, the defendant and C. Gr. Bryan, and had the same assigned to himself. He claims that lie should be subrogated to all the rights and remedies of the judgment creditor, whose debt he paid, and that he is in fact a substituted judgment creditor. Therefore he claims that section 5073 of Kirby’s Digest, the ten-year statute of limitations applicable to judgments, governs here. On the other hand defendant denied that the judgment had ever been assigned to the plaintiff. He claims that section 5064 of Kirby’s Digest, the three-year statute of limitations applicable to implied contracts not in writing, rules the present case. The burden of proof was upon the plaintiff to show that he had procured an assignment of the judgment to himself. The law does not itself make the assignment because the plaintiff might have paid off the judgment and might have procured the judgment creditor to assign the judgment to him; but it devolved upon the plaintiff to establish the fact by proof. This he failed to do. The court found in favor of the defendant on his plea of the statute of limitations. The case was tried before the court sitting as a jury and according to the defendant’s evidence he was a cosurety with the plaintiff on the note. The right of action for contribution accrues when one surety pays more than his share of the common liability. In most of the eases it is said that the contract for contribution between sureties is one which the law implies for their mutual protection and indemnity. Nearly all the cases agree, however, that no cause of action arises until payment by one of their common debt and the statute of limitations begins to run against an action to enforce contribution at the time of such payment. Woods v. Leland, 1 Metc. (Mass.) 387, and Mentzer v. Burlingame (Kan.), 81 Pac. 196, and case note. Numerous decisions which we have read are cited in the note in support of the principal case. It follows then that there was an implied liability only against the defendant, and the three-year statute of limitations governs. Dismukes v. Halpern, 47 Ark. 317, and 32 Cyc. 299. The record shows that the plaintiff paid the judgment on the 20th "day of April, 1914. The present suit was commenced on July 23,1918. Consequently more than three years had elapsed between the time when the plaintiff’s cause of action accrued and the time when he commenced this suit. Therefore the court was right in sustaining the defendant’s plea of the statute of limitations and the judgment must be affirmed.