Johnson v. State ex rel. Slinkard

Elliott, C. J.

— The appellant’s complaint alleges that a judgment, obtained against her by the relator Slinkard, had been satisfied, and prays that any entry of'satisfaction may be made of record. The appellees answered by a general denial, and the parties entered into the following agreement: “We agree that all matters of defence that could be given in evidence under any form of answer or cross complaint may be given in evidence under the general denial, and that all matters that could be given in evidence under any form of pleading for plaintiff, by reply or answer to any cross complaint, may be given in evidence under the defendants’ general denial.” It was competent for the parties to make this agreement, and its provisions are obligatory. Every conceivable matter of defence is, by the terms of this agreement, admissible in evidence. The only question which can arise is, whether the evidence tends to establish a defence of any character whatsoever.

A single error is alleged, and that is assigned upon the ruling refusing appellant a new trial.

The appellees proved, by the sheriff of Lawrence county, the contents of a summons which had been issued to and served by him. This testimony was prefaced by proof of the loss of the w7rit. The court did not err in admitting this evidence. It is said by counsel that the court erred in permitting the sheriff to testify as to the contents of a written memorandum, but we find no objection made to any such testimony. The-only objection stated was to evidence of the contents of the summons. A settled rule of practice is that a party can not state one objection in the trial court, and insist upon another on appeal.

Francis Dugger, the sheriff of Greene county, was permitted to testify, over the. objection of the appellant, that no money was paid on the bid made at a sale upon an execution issued to him as sheriff, except enough to pay costs, and that the amount of the bid, less the costs, was credited on the execution. This testimony explained the receipts endorsed on the writ, and for that purpose was competent. Receipts may be-explained, varied or contradicted by -parol testimony.

A plaintiff who, in stating his cause of action, alleges the existence of a thing, will not be heard to aver in the course' of the cause, that the thing did not in fact exist. This rudimental principle disposes of appellant’s argument that there was no judgment; for, in her complaint, she expressly affirms that there was such a judgment. The theory of the complaint is, that there is a judgment, which appellant is entitled to have entered satisfied.

In a proceeding to compel satisfaction of a judgment, or to enjoin its collection, no enquiry can be made into the proceedings prior to the judgment, .except only as to whether the court possessed jurisdiction. If there was j urisdiction, then no matter how many, or how serious, the errors committed, the judgment will repel all such collateral attacks as the present. Even if the appellant were in a situation to question the validity of the judgment which she desires satisfied, the statement of this, familiar rule would be a complete answer to all the points made against it.

The only remaining question is whether the evidence shows, that the judgment has, in fact, been paid or satisfied. It appears that an execution was issued upon the judgment described in the complaint; that the execution was levied on real estate belonging to one of the execution defendants; that the execution plaintiffs bid in the real estate levied upon, and that a certificate was issued to them. The sheriff’s return shows the receipt by him and payment to the execution plaintiffs of the full amount of the judgment; but this receipt is explained by oral testimony. This testimony shows that no money, except a sum sufficient to pay the costs, was either received or paid out by the sheriff, but that the amount of the bid was credited on the execution. The sale was afterwards set aside upon the complaint of the administrator of the estate of the debtor, who died the owner of the land levied upon, and it was decreed that the land should be sold to pay the debts of the decedent’s estate. This judgment finally and completely disposed of the levy. The decree prohibited its enforcement, and this worked its destruction. A levy that is prohibited from being enforced, can not be deemed a satisfaction. In no case is a levy anything more than a prima facie satisfaction of a. judgment, and the decree rendered upon the petition of the administrator of the deceased debtor completely strips the levy of all force. It would be unjust to hold a judgment satisfied by a levy which is conclusively shown to be utterly incapable of enforcement. The decree prohibiting the sale of the land, in effect, put an end to the levy, and to all proceedings flowing from it. By no possibility could such a levy result in a satisfaction of the judgment. There is no equity in appellant’s-claim that a judgment, upon which not even a dollar has been paid, shall be declared satisfied by a levy from which not a cent can, as the evidence conclusively shows, ever • be realized.

Judgment affirmed. .