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87 Ind. 383

Stout v. Duncan

Indiana Supreme Court

Decided November 15, 1882

Indiana Supreme Court · decided 1882-11-15

<p>Practice.— Withdrawal of Pleadings. — Error can not be assigned upon rulings as to pleadings which are afterwards withdrawn.</p> <p>Same. — New Trial as of Right. — Case Distinguished. — A motion for a new trial as of right, under section 1034, R. S. 1881, made at the term at which the judgment was rendered, need not be in writing. Crews v. Ross, 44 Ind. 481, distinguished.</p> <p>Sheriff’s Sale. — Quieting Title of Purchaser. — A purchaser of lands at sheriff’s sale, whose right to a deed is so questioned and denied as to be a cloud upon it, may maintain a suit to quiet his equitable title, after the time for redemption has expired.</p> <p>Same. — Redemption.— Principal and Surely.— Subrogation.— Evidence. — New Trial. — By a special finding the court found (1) that a joint judgment was obtained against a principal debtor whose land was sold on execution to satisfy an older judgment, and a surety, not so designated in the judgment, that the surety had paid the judgment, and afterwards in a suit by him it was so found, and adjudged that he be subrogated to the rights of the plaintiff in the judgment and have execution thereon, which had issued, and that a levy had been made on the land so sold, and (2) that this surety liad no right to redeem from the sheriff’s sale, under the statute, 2 R. S. 1876, p. 220.</p> <p>Held, that upon these findings a conclusion of lawj that the surety had no right to redeem, was correct.</p> <p>Held, also, the evidence showing the first of these findings to be true, that a new trial should have been granted upon the evidence.</p> <p>Same. — Redemption.—Replevin Bail. — Replevin bail who has not paid the judgment has no right to avail himself oi the judgment lien in order to redeem lands from sheriff’s sale. 2 R. S. 1876, p. 220.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1882-11-15

How this case has been cited

Cited by 15 later decisions — most recently April 2009

15 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1On Petition for a Rehearing.

Bicknell, C. C.

¶2The petition claims that the provisions *390of section 676 of the code of 1852, are applicable only to sureties who have been judicially declared to be such by a proceeding for that purpose instituted in the original suit, under section 674 of the code of 1852, and that, although Buskirk, in a subsequent suit brought by him against all the parties to the original suit, was by the judgment of the proper court declared to be a surety, and although by that judgment it was declared that he had paid the judgment in the original suit in full, and that he was subrogated to the rights of the plaintiff in the original suit, and should have execution therein, yet that “the whole proceeding to try the question of surety-ship was a nullity, and that Buskirk’s rights were not enlarged thereby, and that the payment of the judgment by him satisfied the judgment, and that he, failing to have the question of suretyship determined in the original proceeding, is estopped from claiming any rights as surety.” In this we think the petitioners are mistaken. Section 676, supra, contains the following provisions: “When … any person being surety in any undertaking whatever, has been * compelled to pay any judgment or any part thereof, or shall make any payment which is applied upon such judgment by reason of such suretyship, … the judgment shall not be discharged by such payment, but shall remain in force for the use of the * surety, * and … may be prosecuted to execution for his use.” Scherer v. Schutz, 83 Inch 543. The relief granted to sureties by this section is not limited to those only who have been declared such by proceedings in the original suit. There is no element of estoppel in the case. The evidence was oral testimony and a written statement of facts agreed upon and submitted as evidence, which showed that Buskirk had no right to redeem other than that secured to him as surety in manner aforesaid, but this, as we have seen, was sufficient.

¶3The petition ought to be overruled.

Per Curiam.

¶4The petition for a rehearing is overruled.

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