Kupfer v. Sponhorst

1 Kan. 75 | Kan. | 1862

By the Court,

Bailey, J.

This is a petition in error to reverse or modify a judgment rendered at the last October term of the Second District Court sitting in the county of Atchison.

The action in the Court below was brought by Sponhorst and Hackman, two of the defendants in error, co-partners as Sponhorst & Co., against Charlotte A. Crowell (now made a defendant in error) and John F. Kupfer, the plaintiff in error, to recover the amount of two promissory notes signed by said Charlotte A. Crowell and said John F. Kupfer, jointly and severally, and payable to said Sponhorst & Co. The judgment was rendered by default against John F. Kupfer, as principal, and against Charlotte A. Crowell, as surety.

The assignment of error is as follows :

First. The Court erred in rendering judgment against said John F. Kupfer as principal and Charlotte a Crowell as surety.

Second. There being no appearance by defendants, and judgment rendered for want of an answer, the judgment should have been rendered against both the defendants as principals.

Third. That the Court had no parol or other testimony showing that either defendant signed said notes as security, and therefore erred in its rendition of judgment. .

On examination, it will be readily seen that the three allegations above stated, substantially resolve themselves into one, namely: That the Court erred in rendering judgment against Kupfer as principal, and Qrowell as surety.

The record in the case shows the fact that judgment was so entered without showing any reasons why it was done.

Section four hundred and sixty-one (p. 156) of the Code of Civil Procedure provide? that, “ in all cases where judgment is rendered in any court; of record upon any instrument of writing in which two or more persons are jointly and severally bound, and it shall be made to appear to the Court by parol or other,testimony that one or more of said persons so bound, signed the same as surety or hail for his or their co-defendants, it shall be the duty of the clerk of said Court in recording the judgment thereon to certify which of the defendants is principal debtor and which are sureties or bail,” and further provides that the creditor shall exhaust his remedy against the goods of the principal debtor before taking any of the property of the surety.

In this case the defendants in the Court below failed to answer, and the plaintiff took judgment by default. This was the end of the litigation between plaintiffs and defendants.

But a question might arise as between the defendants as to suretyship — whether both signed the notes declared on as principal — or one as surety for the other — and if so, which one as surety, and which as principal.

No pleadings or other formalities are required by the Code to bring the question before the Court, but simply the production of the testimony to make the facts appear.

If, then, it was “made to appear ” in this case in the Court below, “ by parol or other testimony,” that Kupfer signed the notes declared on, as principal, and Crowell as surety, it ’became the duty of the clerk in recording the judgment to certify that accordingly.

The judgment in this case is somewhat loosely and inartiiicially drawn, but section five hundred and forty of the Code provides that “ a mistake, neglect or omission of the clerk shall not be a ground of error, until the same has been presented and acted upon .in the Court in which the mistake, neglect or omission occurred,” and it does plainly appear from the record in this case that the question of suretyship was passed upon by the Court. Is it, then, to be presumed in the absence of all proof that the Court below acted unadvisedly upon a question not before it ? Clearly not. On the contrary, the presumptions of the law are all in favor of the regularity and validity of the proceedings. As where a record shows a verdict to have been found — which could not have been properly found — but upon proof of certain facts not alleged to have been proved, it has uniformly been held that the Court must presume that the verdict was found upon sufficient evidence, and therefore that such facts were proved before the jury as were necessary to support the verdict. The maxim of law in all such cases is “ omnia prcesumuntw rite et solenniter esse acta donee probetur in contrarium.”

We can see no reason ’why this rule is not as applicable to the finding of the Court in this case as to the verdict of a jury, and we are therefore forced to conclude that no error is apparent upon the record before us.

It is therefore ordered by the Court that the judgment be affirmed at the costs of the plaintiff, and that a mandate issue to the Court below to carry the judgment into effect. Execution here for costs of this Court.