174 S.W.2d 551 | Ark. | 1943
This appeal involves but one question: venue. Appellants John K. Gibson and Josephine Gibson executed their note to the Bank of Swifton as follows:
"1034.18 Swifton, Ark. August 18, 1937
"November 1, 1937, after date, I, we, or either of us, promise to pay to the order of The Bank of Swifton one thousand thirty-four and 18/100 dollars, for value received *2 at The Bank of Swifton, Swifton, Arkansas, with interest at the rate of eight (8) per cent. per annum from date until paid. Interest due and payable annually, and if not paid when due, to become as principal and bear a like late of interest until paid. And further agree that if this note is not paid at maturity to pay all cost of collection including all attorney's fee. The makers endorsers of this note hereby severally waive presentment for payment, notice of non-payment and protest and the consent given for the time of payment to be extended without notice.
"Jno. K. Gibson
"Josephine R. Gibson" (Tr. 15)
The bank indorsed the note to W. D. Morgan, and he indorsed it to appellee, Talley. Talley brought suit against the Gibsons and Morgan in Pulaski county, serving Morgan in Pulaski county, where he resided, and serving the Gibsons in Lawrence county, where they resided. The Gibsons moved to quash service claiming they were entitled to be sued in the county of their residence, and that they were not jointly liable with Morgan on the note because they were primarily liable as makers and Morgan was only secondarily liable as indorser. From a trial on the merits and a final judgment against Morgan and the Gibsons, comes this appeal by the Gibsons.
We hold that the Gibsons were properly sued in Pulaski county since Morgan was a resident of Pulaski county and was served in that county and since judgment was rendered against Morgan along with the Gibsons. There was no claim that Morgan and Talley had entered into any collusion to obtain venue in Pulaski county of the suit against the Gibsons. This action on the note comes within 1398 of Pope's Digest, which is: "Every other action may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned."
Section 1400 of Pope's Digest provides; "Where any action embraced in 1398 is against several defendants the plaintiff shall not be entitled to judgment against any *3 of them on the service of summons in any other county than that in which the action is brought, where no one of the defendants is summoned in that county or resided therein, at the commencement of the action; or where, if any of them resided, or were summoned in that county, the action is discontinued or dismissed as to them, or judgment therein is rendered in their favor, unless the defendant summoned in another county, having appeared in the action, failed to object before the judgment to its proceeding against him."
These sections must be considered along with 521 of Pope's Digest, which is from the Revised Statutes of 1837, and which reads: "All indorsers or assignors of any instrument in writing assignable by law, for the payment of money alone, on receiving due notice of the nonpayment or protest of any such indorsed or assigned instrument in writing, shall be equally liable with the original maker, obligor or payee of such instrument, and may be sued for the same at the same time with the maker, obligee or payee thereof, or may be sued separately.
Under the last-quoted statute, Morgan, as all indorser became equally liable with the makers and might be sued at the same time with the makers, provided that Morgan received "due notice of the nonpayment of protest."But the note sued on contained an express waiver of notice of nonpayment and protest; and the law does not require the holder of a note to give a notice that has been expressly waived. In Walker v. Walker,
So the case stands here as though Talley had given Morgan due notice under the section that is now 521 of *4 Pope's Digest, and that section says that the indorser shall be "equally liable" with the maker. That statute makes Morgan and the Gibsons equally liable on the note in this case, and destroys the Gibsons' contention concerning the weight and degree of liability.
It is undoubtedly true that the maker and indorser of a note are not liable in the same degree and weight. In 8 Am.Jur. 557, it is stated: "At common law, in order to maintain an action ex contractu against a number of defendants, the plaintiff must show a joint liability in all; and since the liabilities of the maker and the indorser of a promissory note are not joint but several, and are dependent upon substantially different conditions and contingencies, the maker and indorser cannot under the common law be joined as defendants in an action on the note, even though the indorsee is also the payee of the instrument. In many jurisdictions, however, by virtue of statutory authorization, a joint action may be maintained against the acceptor, the drawer, and indorsers of a bill of exchange or against the maker and indorsers of a note, as the case may be." To the same effect see 10 C.J.S. 1182.
In Ann. Cas., 1912D (vol. 25), p. 1201, there is a splendid not on the right to maintain a joint action against maker and indorser of a promissory note, and the general rule, stated in American Jurisprudence above, is there set out and discussed with citation of many cases; and Arkansas is listed as one of the States that has a statute permitting the maker and indorser to be jointly sued. Our statute is the statute that is now 521 of Pope's Digest; and the case recognizing this statute and so declaring the law is Taylor v. Coolidge,
Appellants cite Lingo v. Swicord,
Sections 1398, 1399 and 1400, of Pope's Digest, were respectively 96, 97 and 98 of the Civil Code adopted in *5
1869, and these sections have come down to us without change and have been in each digest of the statutes since 1874. We refer here to the section numbers as contained in Pope's Digest. There is nothing in 1398 of Pope's Digest that requires that the defendants shall be "jointly liable" before a non-resident of the county can be sued along with a resident of the county. We find no case where the idea of requiring the defendants to be "jointly liable" was ever mentioned until Wernimont v. State,
Now in using the expression "joint liability" in the first quotation above, and in using the expression "jointly liable "in the second, it is clearly apparent that the court used those expressions to mean "defendants liable on the same cause of action," or "parties defendant in the same action." The words were not used to mean "jointly and severally liable" as that expression is used in the negotiable instruments law. The conclusion reached in the Wernimont case could not have been logically reached if the words were intended there to have the technical meaning used in the negotiable instruments law. There is distinction between joint action and joint liability. *6 Bouvier's Law Dictionary (3rd Ed.) p. 1702, says of joint action: "An action brought against two or more defendants."
The Wernimont case was in 1911; and in 1920, the words "jointly liable" appeared in the venue case of Hoyt v. Ross,
Thus the law existed until Lingo v. Swicord in 1921, where the unfortunate language of Wernimont v. State and Hoyt v. Ross (as just pointed out) was allowed to creep into the opinion of the court; for in Lingo v. Swicord the words "jointly liable," as used in the said two previous decisions, were unfortunately used in the sense in which the words are used in the negotiable instruments law; and this court there erroneously (as we now see it) held that the defendants would have to be liable in equal weight and degree before they could be sued in the same county in the face of a plea of venue.
Two things are wrong with Lingo v. Swicord: (1) The use of the words "jointly liable" as heretofore mentioned; and (2) the failure of the court to notice the section that is now 521 of the Digest, which was 9, chapter 11 of the Revised Statutes of 1837, and which was the basis of the decision in Taylor v. Coolidge,
It is with a great deal of trepidation that any court should overrule a previous decision. Rarely, if ever, should this be done when the decision is a rule of property. In 54 C.J. 1110, a rule of property is defined as: "A settled legal principal governing the ownership and devolution of property; the decisions of the highest court of a state when they relate to and settle some principle of local law directly applicable to title. In the plural, those rules governing the descent, transfer, or sale of property, and the rules which affect the title and possession thereto." Lingo v. Swicord involved only a rule of adjective law; and not a rule of property law, and that case has been cited only four times since its decision in 1921, and so it can now be overruled without doing any great damage. The four times in which Lingo v. Swicord has been cited are: 182 Ark. 560,
To conclude, we now hold:
1. That the lower court properly overruled the plea of venue of the appellants, and the case should be affirmed.
2. That the maker and indorser of a note can be sued in the same action in this state under 521 of Pope's *8 Digest, and the plea of venue is not good in such action unless there is a fraudulent or fictitious joinder, or unless the resident defendant is dismissed before judgment, etc., (see 1400 of Pope's Digest).
3. That so much of Lingo v. Swicord as is in conflict with this present opinion is hereby overruled.
The judgment of the lower court is in all things affirmed.