German v. Gallo

| Conn. | Jun 5, 1924

The only question of law presented on the appellants' brief is whether the defendants, being indorsers on the mortgage note, are relieved from responsibility by the action of the plaintiff in taking a deficiency judgment against the maker, only, without asking for a deficiency judgment against the indorsers in the same proceeding. This is the question which was presented by the special defense, and it was answered in the negative by Judge Wolfe's decision sustaining the demurrer thereto, as well as by the trial court in rendering judgment for the plaintiff.

The defendants' claim is that the plaintiff having joined both the maker and the indorsers of the mortgage note in the foreclosure suit, ought to have joined the indorsers as defendants in the ancillary proceeding asking for a deficiency judgment; in short, that the plaintiff, having elected to join the indorsers in the foreclosure suit, cannot thereafter split her cause of action for a deficiency judgment; but must pursue all parties liable on the note in the same action. No Connecticut case is referred to in support of this claim, and the cases cited from other jurisdictions are those in which the plaintiff, having joined all the makers of the same note in one action, took judgment against one only. The distinction is plain. In the cases cited all the defendants were liable as principals on the same promise to pay. In this case the indorsers are liable as sureties on the maker's promise to pay, and this contract is separate and distinct from that of the maker.

Besides, it is found that the allegations of the complaint in the foreclosure suit were not sufficient to hold these defendants as indorsers; they were joined in that action to prevent the judgment of strict foreclosure from operating as a bar to a further action against them upon the mortgage note. General Statutes, § 5196.

Finally, the question is one of local procedure, and our practice is well settled not only by authority but by the rules of court. As to authority, see Staples v.Hendrick, 89 Conn. 100" court="Conn." date_filed="1915-02-05" href="https://app.midpage.ai/document/staples-v-hendrick-3317612?utm_source=webapp" opinion_id="3317612">89 Conn. 100, 93 A. 5" court="Conn." date_filed="1915-02-05" href="https://app.midpage.ai/document/staples-v-hendrick-3317612?utm_source=webapp" opinion_id="3317612">93 A. 5. Rule 159 (Practice Book, p. 278), provides that where the plaintiff may at his option join several as defendants, or sue them separately, judgment without satisfaction against one shall not bar a suit against another. It is elementary that the maker and indorser may be sued separately. They may also be sued jointly. Rule 155, Practice Book, p. 278. In this State the foreclosure suit and the action on the note have always been treated as separate and distinct causes of action. Staples v. Hendrick,89 Conn. 100" court="Conn." date_filed="1915-02-05" href="https://app.midpage.ai/document/staples-v-hendrick-3317612?utm_source=webapp" opinion_id="3317612">89 Conn. 100, 93 A. 5. But both causes of action may be pursued in the foreclosure suit at the plaintiff's option. General Statutes, § 5196.

It follows that the plaintiff might join the indorsers in the foreclosure suit solely to prevent the decree of strict foreclosure from operating as a bar to a further suit against the indorsers on the note; and if the debt were not fully satisfied by the foreclosure, she might thereafter bring separate actions against the maker and indorsers on the note. It can make no difference that she elected to pursue her action against the maker of the note in a proceeding ancillary to the decree of foreclosure. As the debt was not satisfied by taking the deficiency judgment against the maker, the indorsers are still liable in a separate action. Staples v.Hendrick, supra.

There is no error.

In this opinion the other judges concurred.