Johnson v. Success Brick Machinery Co.

| Miss. | Mar 15, 1908

Lead Opinion

Whitfield, C. J.,

delivered the opinion of the court.

It very clearly appears, we think, from the testimony, that Johnson signed as a surety only. It also appears that the judgment obtained by the appellee against W. O. Bacon was probated, but that the note given by Bacon and Johnson to secure an extension of time for Bacon within which to pay the judgment was not probated. The declaration had averred that the-note was probated. The administrator of Bacon, who had died before suit, filed no plea and made no defense at first, because-as he says, he supposed the allegation of the declaration to be-true, and did not care to put the estate to the expense of paying posts and an-attorney’s fee. When, in.the progress of the trial, it appeared from the plaintiff’s own testimony that the note had not been probated, the administrator asked leave to file a plea-setting up the failure to probate the note within the time allowed by law as a discharge of the principal debtor, Bacon. In this motion. asking leave, Bright, the administrator, stated that his reason for not having filed a plea was that the declaration, of the plaintiff stated that the note had been duly probated, that said note and probate thereof were in the hands of the plaintiff and controlled by him, and that the administrator, relying upen the truthfulness of that statement, in order to save expense of an attorney’s fee, etc., to the estate, had not filed any defense, and that the administrator, did not know, until the plaintiff by his own evidence showed that said note had not been probated, chat such was the fact; and the administrator, further in support of his motion, stated that the plaintiff had introduced all of his evidence and rested, and had not asked for a judgment by default against him, the administrator, and that the plaintiff’s rights could not be prejudiced by allowing the administrator’s plea to be filed, since he offered, after this plea had been filed, to allow all the evidence theretofore introduced to be considered by the jury. At the same time the defendant Johnson moved the court to be permitted to file a special plea setting up the defense that the note sued on was signed by him as surety, and that the plaintiff knew at the time of the execution of the note sued on that defendant and said Bacon were not primarily liable, and knew, further, that Johnson only signed said note as surety for said Bacon, and that said note had not been duly probated. When these motions were presented to the circuit court, this statement was made by the court: “The foregoing motions were made after all the evidence had been introduced, and both sides had rested, and after both the plaintiff and the defendant Johnson had requested the court to grant each a peremptory instruction, and the same had been fully argued, but before the court had announced his decision in the matter.” Thereupon the court overruled both the motions, and judgment by default followed against the administrator, and a judgment against the defendant Johnson upon a peremptory instruction from the court.

We think the court erred in not sustaining these motions. The statement quoted shows that the ground for not allowing the motions was the lateness of the time at which they were presented; but we think that no prejudice could have occurred to the plaintiff by reason of sustaining the motions, and the merits-of the case required that they should be sustained. In the case of Cheairs Ex’rs v. Cheairs Adm’rs, 81 Miss., 662" court="Miss." date_filed="1902-10-15" href="https://app.midpage.ai/document/cheairs-executors-v-cheairs-administrators-7988904?utm_source=webapp" opinion_id="7988904">81 Miss., 662, it was held that the-provisions of the probate law must be strictly followed in the making of the probate. Annotated Code 1892, § 1933, was the section that both parties manifestly understood should be invoked, which is as follows:

“All claims against the estate of a deceased person, whether due or not, shall be registered, probated, and allowed, in the court in which the letters testamentary or of administration were granted, within one year after the first publication of notice to creditors to present their claims; otherwise the same shall be barred, and a suit shall not be maintained thereon in any court, even though the existence of the claim may have been known to the executor or administrator.”

This suit could not possibly, under that statute, be maintained since the note itself had not been probated. This case is not one to be controlled by the ordinary doctrine that mere non-action on the part of a creditor, whereby the debt is barred as against the principal, will not release the surety, as set forth in Johnson v. Planters’ Bank, 4 Smed. & M., 165, 43 Am. Dec. 480, for the reason that this case is regulated by the peremptory and positive provision of the statute, and’not by the general rule announced in Johnson v. Planters’ Bnak,

The judgment must necessarily be reversed as to the administrator, Bright, for the reason’ given — the failure to probate the note wdthin the time required by law. But counsel for appellee insist that, under Code 1906, § 4944, no reversal should follow as to Johnson because of a reversal as to the administrator. That section is as follows:

“In all cases, civil and criminal, a judgment or decree appealed from may be affirmed as- to some of the appellants and be reversed as to others; and one of several appellants shall not be entitled to a judgment of reversal because of an error in the judgment or decree against another, not affecting his rights in the case. And when a judgment or decree shall be affirmed as to some of the appellants and be reversed as to others, the case shall thereafter be proceeded with, so far as necessary, as if separate suits had been begun and prosecuted; and execution of the judgment of affirmance may be had accordingly. Costs may be adjudged in such cases as the supreme court shall deem proper.”

But the exception is stated in the section itself, and that is that one of several appellants may be entitled to a judgment of reversal because of an error in the judgment or decree against another, where that judgment affects his rights in the case. Clearly, here, the error in the judgment as to Bright directly affects the right of Johnson in the case, since the judgment against Bright is reversed because of the failure to probate the note, which entirely releases the principal debtor.

But there is another reason supporting a reversal as to Johnson, which is this: Johnson offered to prove, and asked to be permitted to prove, under the special plea he desired to file, that the creditor knew he was not primarily liable and had full knowledge of the fact that he signed as a mere surety. On this point this court said in Meggett v. Baum, 57 Miss., 22" court="Miss." date_filed="1879-04-15" href="https://app.midpage.ai/document/meggett-v-baum-7985270?utm_source=webapp" opinion_id="7985270">57 Miss., 22: “It is the knowledge of the creditor that the several parties sustain to each other the relation of principal and surety, which makes it inequitable for him to so act towards the principal as to vary the rights of the real surety. It is, therefore, not the form of the instrument by which parties have bound themselves, but the fact that one is principal and the other surety, as between themselves and that this is known to the creditor.” Under this authority, as applied to what Johnson offered to prove under the special plea which he asked leave to file, it is clear that he should have been permitted to have the proposed plea filed, and that it constituted, if sustained by evidence, a perfect defense for Johnson.

It follows that the judgment must be reversed as to both Bright and Johnson, and the cause remanded.

Reversed.

ON SUGGESTION OK ERROR.

Per Curiam. Suggestion of error overruled.

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Dissenting Opinion

Calhoon, T.,

delivered the following dissenting opinion.

I dissent from the overruling of the suggestion of error, and think the court went wrong in the original case in relieving the surety because the payee did not probate the note against the principal signer.