| Ind. | Jun 6, 1861
The appellee filed a claim against “ The estate of Gorham TuftsP The case was so docketed, and as far as the record shows, was so prosecuted to a final determination below. The record shows that the “ parties appeared,” and that the “defendant” demurred, answered, made objection to the introduction of evidence, moved for a new trial, took bills of exceptions, &c. But as the representative of the estate was the plaintiff, and he had not by his complaint made an adversary party capable of defending, nor had the Court, by an order of record, in any manner made such party, the proceedings would, by the showing of the record, have appeared irregular, at least. See Hubbard v. Hubbard, ante, p. 25. After the transcript was filed in this Court, the appellant, by petition, averred that as the guardian of the only heir of Tufts he had appeared bélow, and by permission of the Court made the defense which was made, and prayed that the record might be so changed as to permit him to prosecute this appeal.
Under these circumstances, we think the appellant can not be heard in his objection, now made, that the record does' not show an adversary party and proceeding below.
Eor two reasons, it is urged that the demurrer to the complaint should have been sustained : first, because the instrument upon which the claim is founded was not executed by Halstead’, second, that it was the joint instrument, or promise of one Glarle and Tufts, and as judgment had been taken against Olarlc, another suit could not bo prosecuted.
The written instrument began in this form: “Memorandum of lease and covenant made and entered into on, &c., by and between William A. Scribner, as agent for David C. Halstead, of the one part, and William Ciarle and Gorham Tufts, of the other part.” It was signed, William A.
' The complaint avers that they jointly occupied the premises leased, and that after the death of Tufts, to wit, in 1851, . a suit was brought, judgment obtained, execution issued, and returned no property found as to OlarJe; that Olarh died in 1857, insolvent, and this claim was in 1859 filed against said estate.
"Was the Tease the contract of Halstead, and if so, does he show a right to maintain this second suit upon it?
As to the first inquiry, as there is nothing in the body of the instrument which shows that the parties are other than as expressed in the parts herein quoted—they being continually referred to as “ the party of the first part,” or “ the party of the second part,” we are of opinion that the plaintiff is properly described in the complaint as the lessor. 1 Blackf. 242.
As to the second inquiry, it has been decided by this Court, (Taylor v. Claypool, 5 Blackf. 558; and Henderson v. Reeves, 6 Blackf. 101" court="Ind." date_filed="1841-11-15" href="https://app.midpage.ai/document/henderson-v-reeves-7030589?utm_source=webapp" opinion_id="7030589">6 Blackf. 101) that a judgment against one joint promissor in a note, is a bar to another suit on the same note against the other maker; but those were not instances where the promissor not joined was dead, and therefore it is insisted, even if this is true as to the rights of the parties when they are all living, that it does not apply to a case where judgment is taken against a surviving joint promissor who proves insolvent; but that under such circumstances the creditor could, under the old practice, pursue in equity the assets of the deceased promissor, (Brown v. Benight, 3 Blackf. 40,) and that under the present practice, in which the distinctions between law and equity are abrogated, a simple civil action can be maintained so as to subject the assets to the debt, in a case of insolvency of the surviving joint maker of the note. It is further urged, that the Legislature, by the first clause of § 41 and § 641 of the Practice act, has changed the rule, even at law, in regard to a judgment against one, being a bar to a suit against another, joint contractor.
This question has been already settled in this Court, in . the case of Weyer v. Thornburgh, 15 Ind. 124" court="Ind." date_filed="1860-11-30" href="https://app.midpage.ai/document/weyer-v-thornburgh-7034886?utm_source=webapp" opinion_id="7034886">15 Ind. 124. It is not,
The judgment is affirmed, with costs.