| Tenn. | Dec 15, 1914
delivered the opinion of the Court.
The bill of complaint in this canse was filed to have determined tbe order of liability inter sese on a nóte executed by complainants Knight and Gibbons and defendant Cooley, all of whom signed as if comakers.
Complainants claim: First, that they signed, as sureties, for Cooley, as principal, hnt the chancellor and the court of civil appeals concurred in finding the fact to the contrary, which concurrence concludes the matter in this court. State ex rel. v. Lee, 124 Tenn., 385" court="Tenn." date_filed="1911-04-15" href="https://app.midpage.ai/document/state-ex-rel-cannon-v-lee-8300746?utm_source=webapp" opinion_id="8300746">124 Tenn., 385, 136 S. W., 997.
A second insistence of complainants is: That after the note was executed Cooley assumed to pay the same, and thereby took the status of primary obligor. The court of civil appeals held that it was not necessary for it to pass upon that question, and it did not do so.
A petition for certiorari being filed by complainants,, and error assigned upon such failure or refusal, and, further, to the effect that the record shows such assumption by Cooley, this court will look to the record and determine what the fact is in respect to the matter thus pretermitted by the court of civil appeals. We find and hold that Cooley did not assume the payment of the note so as to become primarily liable or to render complainants secondarily liable.
There appears to be some uncertainty on the part of the bar as to the remedy and practice in such cases.
The petition for certiorari is granted complainants, and the decree of the court of civil appeals modified so as to pass upon the above question, in favor of defendant Cooley, however.