Graham v. Ringo

Apr 15, 1878
Versions:67 Mo. 324
Hough, J.

This was an action instituted in the Cape Girardeau court of common pleas, against the defendant, Bingo, as maker, and the defendant, Hector, as guarantor, of a certain promissory note. Hector resided in Cape •Girardeau county, but the defendant, Eingo, resided, and *326was served, in Scott county. Botb made default, and, on the 4th day of February, 1876, final judgment was rendered against botb. On the 7th day of February ,1876,the defendant Ringo, appeared specially, and moved to set aside the judgment rendered against him, for the reason that he could not be jointly sued with the defendant, Hector, and beinga resident of Scott county, the court of common pleas of Cape Girardeau county acquired no jurisdiction of his person, by the service of process on him in Scott county. This motion was sustained, and the plaintiff, thereupon, took a non-suit with leave to move to set the same aside, and has brought the case here by appeal.

1. THE MAKER AND THE GUARANTOR. A guarantor is neither an indorser nor a surety. 2 Pars. Notes & Bills, 117. His undertaking is his own separate and independent contract; it is nota engagement with his principal, and he cannot be sued with him. Central Savings Bank v. Shine, 48 Mo. 463; McMillan v. Bull’s Head Bank, 32 Ind. 11; Allen v. Fosgate, 11 How. Pr. Rep. 218. It was improper, therefore, to render a judgment against both defendants.

2. JURISDICTION: misjoinderof parties: practice. Nor could any judgment have been rendered, in this action against Ringo alone. As he was not jointly liable with the defendant, Hector, and did not re- .... . side m the county m which the action Was brought, and was not served with process in said county, the court acquired no jurisdiction over his person. Our statute provides that when there are several defendants» residing in different counties, suit may be brought in either of said counties, and in such case, a separate summons shall be issued to each county for all the defendants residing therein. But this statute evidently contemplates a case in which there is a joint liability on the part of all the defendants. It was not necessary for the defendant, Ringo, to appear and plead to the jurisdiction of the court, as was done in the case of the Capital City Bank v. Knox, 47 Mo. 333, as it sufficiently appeared from the face of the petition that the defendants were not jointly liable, and *327that the defendant, Hector, was joined for the purpose of acquiring jurisdiction over the defendant, Eingo. The judgment was properly set aside, and the judgment of the common pleas court will be affirmed.

The other judges concur.

Affirmed.