Allen v. Wolford ex rel. Colbert

Opinion by

Mr. Justice Paxson:

We think it was error to reject the receipt of James Allen of date of April 5, 1883. Granted that the plaintiff in error was bound by the subrogation proceedings, he was bound no further than as to the order of subrogation itself. That the proceedings ivere pending when the receipt was given does not make any difference. After obtaining the receipt it ivas to plaintiff’s interest that the order of subrogation should be made, for the plain reason that his receipt was of no value until it was made. The order permitted James Allen to stand in the shoes of tbe plaintiff in the judgment, nothing more. It was then, and then only, that the receipt of James Allen became of value to Jefferson Allen. When, therefore, Janies Allen, or his assignee, attempted to enforce this judgment against plaintiff in error, he had a right to set up the receipt or release in his favor. The present use plaintiff has no reason to complain. Had he inquired of the defendant in the judgment before he became use plaintiff he would have learned the truth. That he did not do so was probably owing to his ignorance of the effect of an order of subrogation.

The judgment is reversed and judgment non obstante veredicto is now entered in favor of the defendant.