23 Kan. 123 | Kan. | 1879
The opinion of the court was delivered by
This was an action on a promissory note, executed by Adam Brenner and George Brenner to the plaintiff, Nicholas Egly. Both the Brenners resided in Doniphan county. Egly had previously obtained a judgment on the note against Adam Brenner in the state of Missouri, but had never before sued George Brenner. This action was commenced in Atchison county against both Adam and George Brenner. The plaintiff obtained service of summons on Adam Brenner in Atchison county, and afterward obtained service of summons on George Brenner in Doniphan county. Adam Brenner answered, setting up said former judgment rendered , against him in the state of Missouri, giving a copy of the record thereof. George Brenner answered, setting up that he signed said note as surety only, and asking that his rights be protected under §470 of the civil code (Comp. Laws of 1879, p. 664), and further asking that if the plaintiff should fail to recover a judgment against Adam Brenner, then that the action should be dismissed as against him, George Brenner. A trial was had before the court without a jury, and after all the evidence was introduced, and “after argument by counsel, the court at the time announced that its decision in the case would be that plaintiff was not entitled to recover against defendant Adam Brenner and was entitled to recover against defendant George Brenner, a several obligor on said note. Whereupon the plaintiff asked leave of the court to dismiss his said action as to the defendant Adam Brenner alone, without prejudice, to which each of the defendants at the time objected; but the court overruled such objec
We think the court below erred in not dismissing the action as to George Brenner, after it had dismissed the action as to Adam Brenner. The action was not rightly brought in Atchison county. Adam Brenner was no proper party to the action. The cause of action on the note against him had already and long prior to that time been merged in a judgment. And Adam Brenner being no proper party to the action, he could not be used for the purpose of acquiring jurisdiction over George Brenner. (Dunn v. Hazlett, 4 Ohio St. 435.)
The judgment of the court below will be reversed, and cause remanded with the order that the plaintiff’s action against George Brenner be dismissed.