15 Iowa 30 | Iowa | 1863
The present suit is against Seymour alone, upon his written guaranty. The defendant inter
It is conceded that this suit is between the same plaintiff and one of the same defendants, and upon the same cause of action as the one formerly determined by this Court— the appellant now insisting, however, that the case was there adjudicated upon its merits, the appellee insisting that the only question there determined was the one in relation to the misjoinder of parties.
It is claimed in the argument, by appellant, that the demurrer in the former case raised two questions: 1. Whether the defendant was liable jointly; and 2. Whether he was liable at all; and as the Court sustained the demurrer without stating that it was overruled, in so far as it presented any other question except as to the misjoinder, it is proper to infer that it was sustained as a whole, and .that, therefore, there was a complete and full adjudication of •the whole case.
In order to enable the defendant to interpose the plea of a prior adjudication successfully, it must be made to appear ■that the actual point in issue between the parties has already been determined, and such determination or decision must have been upon the merits. Was the point in issue in this case, that is, whether the plaintiff had used such diligence against the defendant as to make him liable •on his special guaranty, decided in the former cause ?/ In .the first place, we think that the presumption would legitimately arise, that where there are two objections raised against the plaintiff’s right of recovery, and one presenting the question as to a' misjoinder of parties, (and a decision upon this would be a fatal objection to the plaintiff ’s recovery), the Court would only pass upon the one, which would necessarily compel the plaintiff to abandon his case. It is not to be presumed that the Court would
But, in the second place, the judgment of this Court, and not that of the District Court, is the final adjudication of a cause that has been appealed; and by reference to the opinion in this case above cited, it will be seen that the questions now raised were not presented or passed upon, nor was the merit of the case adjudicated. And see Delany v. Reade, 4 Iowa, 292, and cases there cited.
It is further claimed by the appellant, that the plaintiff was not entitled to a judgment, for the reason that the order sued on was not presented to the treasurer within a reasonable time after the execution of said guaranty, and that defendant was not notified of the non-payment of said order within a reasonable time.
Conceding it to be true that this instrument is to be regarded, under the rules of the commercial law, as a sight draft on the treasurer, then the defendant is not such a guarantor as to entitle him to notice of its presentation and non-payment within a reasonable time before he could be made liable. It is not an indorsement in blank, such as is contemplated by §§ 958 and 954 of the Code. The liability of the defendant, under his written guaranty, is not conditional, but absolute. He agrees that the order will be paid when due and presented. The liability of the maker of this character of a guaranty has been determined by this Court in Sabin & Moon v. Harris, and Knight v. Dunsmore & Chambers, 12 Iowa, 87, 85.
Affirmed.
