142 Ind. 130 | Ind. | 1895
The appellant, James B. Michener, brought this suit against The Springfield Engine and Thresher Company, and Edgar A. Simmons, sheriff: of Howard county, concluding with a prayer, to enjoin an execution and judgment against him, and for all just and proper relief and for satisfaction thereof. It appears from the complaint that John H. Kennedy, Benjamin E. Hockstedler and Christian Kly, as principals, on December 1,1888, executed three several promissory notes, to the appellee company, amounting in the aggregate to $415.00 in consideration of a sale to them by said company of a separator engine and thresher of its manufacture; that after the execution of said notes, appellant, Michener, wrote his name across the back of each as accommodation guarantor or indorser thereon; that after the maturity of the $140.00 note, it was paid by said principals; that afterwards, the next note falling due, calling for $131.50, said payee brought suit on both of the unpaid notes against the principals and appellant, as indorser, and on July 12, 1890, appellant was defaulted and judgment was rendered thereon against him for $339.08, and costs taxed at $21.90; that said judgment against him was based exclusively on his said indorsement of said notes ; that Kennedy, Hockstedler and Kly appeared and thereafter made defense to said action, and at the March term
The appellee company moved the court to dismiss the cause for want of jurisdiction, which motion the court sustained and dismissed the cause for want of jurisdiction. This ruling is questioned by the assignment of errors by the appellant.
The ground upon which the learned counsel for appellees seek to support the action of the trial court is that this being an application to a court of equity for the extraordinary relief by the way of injunction, it has no jurisdiction of the cause, because the plaintiff had a plain and adequate remedy at law, and that he had such remedy at law; they cite, Ross v. Banta, 140 Ind. 120.
It was there held that a judgment by which the party recovering it had secured an unfair advantage, and wher
It is therefore contended by the appellee company that the discharge of the principals on the trial after the judgment against the surety were facts occurring after the judgment against the surety, constituting “ material new matter discovered since the rendition of the judgment,” and hence that entitled appellant to the remedy •of review, excluding him from the right to the extraordinary remedy by injunction.
This contention granted would by no means justify the assumption that the trial court had no jurisdiction, and rightly dismissed the cause for want thereof. When the two jurisdictions of law and equity were separate, it might, under that system, when the plaintiff’s cause of action stated by him in a court of equity, was of such a nature as that it fell within the exclusive jurisdiction of a court of law, the court of equity had no jurisdiction of the subject-matter and it could take no other action in the
It is not contended by the appellees that it might not be so amended.
The complaint states and the demurrer admits, that appellant was an accommodation indorser, a mere surety for Kennedy, Hockstedler, and Kly on the notes which were the foundation of the judgment against appellant, and that afterwards in the same action said principals defeated said notes against them on the ground of failure of consideration. In Bridges, Admr., v. Blake, 106 Ind. at page 335, it was said: “Upon its face the mortgage purported to be a contract of suretyship, and the general rule is that to enforce such a contract it is essential that the obligation against the principal must be subsisting. The extinguishment of the direct en-. gagement of the principal, no matter how accomplished, extinguishes the collateral liability of the surety. Baker v. Merriam, 97 Ind. 539, and cases cited ; State v. Blake, 2 Ohio St. 147 ; Brandt Suretyship, etc., section 121.”
But there are exceptions to this general rule. For instance, the discharge of the principal by the act of the law in which the creditor does not participate, will not release the surety. A familiar illustration of this rule is that the discharge of the principal in bankruptcy or under insolvent laws, on account of infancy, coverture or non compos mentis, does not discharge the surety. Gregg v. Wilson, 50 Ind. 490 ; Post v. Losey, 111 Ind. 74 ; Brandt Suretyship, etc., section 126 ; 24 Am. and Eng. Ency. of Law, 773. This author at section 125 says, and we think correctly, that, ‘ ‘ If the principal is discharged because of matters inherent in the transaction,
But appellees’learned counsel contend that notwithstanding these principles entitling appellant to relief, he cannot invoke the aid of the extraordinary remedy of injunction for the reason that he had a plain, efficient, adequate, and complete remedy at law by a complaint to review on account of new matter arising since the rendition of the judgment against him in the defeat of the obligation ■ against the principals. Citing Ross v. Banta, supra, in support of this contention. The judgment here involved being in the nature of a judgment at law, and as- judgments at law can only be reviewed by virtue of the code, that remedy as was held in the case cited is a legal remedy.
But it is contended by the ■ appellant that he is not bound to resort to the legal remedy if that remedy is not as practicable and efficient to the ends of justice and its prompt administration both in respect to the final relief and the mode of obtaining it as the equitable remedy; then the aid of equity and injunctive relief may be invoked.
That is the true rule in such cases. Thatcher v. Humble, 67 Ind. 444 ; Bishop v. Moorman, 98 Ind. 1; 1 Beach Injunc., section 32, and authorities there cited; Kilbourn v. Sunderland, 130 U. S. 514; Lewis v. Cocks, 23 Wall, 470.
And it is further contended by appellant that the legal remedy is not as practicable and as efficient as the remedy by injunction, because he contends that a complaint to review would require him to seek to review the whole proceeding, and thereby, if successful, he would open the whole case, not only the judgment against himself but the judgment in favor of and discharging his principals from liability on the notes. If that is so, then
The statute provides that ‘ ‘Any person who is a party to any judgment, etc., * * * may file in the court where such judgment is rendered a complaint for a review of the proceedings and judgment.” R. S. 1894, section 622; R. S. 1881 section 615.
Under this statute appellant was entitled to review the judgment against him without disturbing the separate judgment in the same proceeding in favor of his principals. The general prayer for relief was broad enough in this case to have justified the court in awarding the legal relief of a'review of that judgment, and the facts stated in the complaint only lacked one element to entitle the plaintiff to the legal relief of a review, and that was to file a transcript of the record of the judgment referred to and described in the complaint. The facts stated did not entitle the plaintiff to equitable relief by way of injunction, because they show that he had an ample legal remedy by review but did not as before observed justify the dismissal. It did not state facts sufficient to warrant the legal relief by way of review, because it did not set forth as an exhibit thereto a complete transcript of the judgment or so much thereof as is necessary to fully present the error complained of. McDade v. McDade, 29 Ind. 340; Comer v. Himes, 58 Ind. 573; Meharry v. Meharry, 59 Ind. 257; White