Floyd v. Gilkey

29 Mo. App. 211 | Mo. Ct. App. | 1888

Hall, J.

The bond in suit was given, under the .agreement of the parties to.the original suits, for the purpose of procuring a stay in the case where the judg. ment was against both Abell and the defendant. The bond was given as much for the benefit of the defendant as of Abell, and, if the defendant requested plaintiff to execute the bond, the plaintiff in so doing became the surety of the defendant as much as that of Abell. Hartwell v. Smith, 15 Ohio St. 206. This is so clear that the defendant’s counsel do not dispute it. But they deny the fact that the defendant made such request, and refer us to the evidence in support of their denial.

If this action is to be considered on this appeal as an action at law, inasmuch as no declarations of law were asked or given, the only thing for our decision would be the question as to whether there was any evidence to support the verdict. In determining that question we would not review the facts or weigh the evidence ; we would look to see only whether there was any evidence. Is this action an action at law or a suit in equity ? The petition does state facts going to make a case for the reformation of the bond, of which matter a court of equity would only have cognizance, but not only was there no prayer for any such relief, a matter of little or no moment in itself, but there was no evidence offered to prove those facts. The petition in no other respect stated any facts of equitable cognizance ; in unnecessary detail it stated the facts constituting the plaintiff the defendant’s surety, and averred such to be the fact, and based the plaintiff’s right to a recovery on such fact. The issue as to that fact raised by the pleadings was a legal issue, and as to it the parties were entitled to a jury. The jury was waived, but the issue remained a legal issue, and as such was tried by the court. The plaintiff having abandoned the allegations of the petition as to fraud in the execution of the bond, and its alteration afterwards, the only issue tried was the legal issue just stated. It is true that the principle determining the rights of successive sureties to subrogation against each other did have much to do with the proper determination of the question as to whether the plaintiff was the defendant’s surety, provided the defendant had not in fact requested the plaintiff to execute the bond; but in no other sense did the plaintiff’s case depend upon the principle of subrogation. In this case no subrogation was sought, but the plaintiff simply sought to recover money paid by him as the defendant’s surety. It seems very clear to us that, under the circumstances stated, this case must be deemed an action at law and not a suit in equity.

Since no declarations of law were asked or given, it is impossible for us to say whether the court found that the defendant did or did not request the plaintiff to .execute the bond. Therefore, inasmuch as there was :sufficient testimony to warrant the court in finding that such request was made,, we do not feel called upon to ■express any opinion as to the merits of this casé on the hypothesis that no such request was made. Since the replication denied thatthe defendant was Abell’s surety, .as averred in the answer, and the proof all showed that the defendant was such surety, and yet the plaintiff re- ■ covered, it may be well to say that the recovery was had, not on the ground of such suretyship, but despite it.

No .error appearing the judgment is affirmed.

All concur.