Marshall & Ilsley Bank v. Mooney

205 Mich. 518 | Mich. | 1919

Ostrander, J.

(after stating the facts). Errors assigned upon the so-called findings of the court will not be considered. They present no question for our consideration. The reasons why they present no question have been so many times stated that we content ourselves with a reference to Circuit Court Rule No. 45, the decisions collected in any annotated edition of the court rules, and to Oudersluys v. Carstens, 194 Mich. 521; Couple-Gear Freight Wheel Co. v. Railway Co., 196 Mich. 429, 431 et seq.; Federal Audit Co. v. Sawyer, 196 Mich. 566, and cases cited.

It remains to consider whether the refusal of the court to strike out the testimony for plaintiff and to dismiss the case (assignments of error 1 and 2) was reversible error. We are of opinion that it was. When plaintiff rested, there was no testimony tending to prove the case made by the declaration, and the motion to strike out the testimony should have been granted, or a judgment for defendant directed.

The objection is not merely to the form of the action.. It is addressed, in part, to the fact that the testimony for plaintiff proves that the note in suit is paid, that plaintiff’s debt, originally evidenced by the note, is paid, that defendant owes it nothing, either on account of the note or otherwise. We are not called upon to determine whether the alleged co-sureties of defendant who paid the debt, originally evidenced by the note in suit, may enforce from defendant contribution. The doctrine that money paid by a surety or a co-surety may be recovered in an action at law upon the implied promise of each surety to each to contribute their respective parts whenever equitable principles require contribution, if fully approved and applied here, obviously does not permit plaintiff to recover in this action upon this note.

The judgment is reversed, with costs of both courts to defendant.

Bird, C. J., and Moore, Steere, Brooke, Fellows, . Stone, and Kuhn, JJ., concurred.