59 Mo. 220 | Mo. | 1875
delivered the opinion of the court.
This suit is by a surety on an administration bond to recover of a co-surety one-lialf of the money the plaintiff paid-on a judgment against the administrator and himself as surety. .
The defense is that in a suit against the administrator, and the plaintiff and defendant who were his sureties, the defendant pleaded bankruptcy, and his plea was adjudged good and he was therefore discharged from all liability to the plaintiff in that action ; and this judgment is relied on as res adjudícala in the present action.
On the trial, the proof was clear that the plaintiff paid the debt of the administrator, for whom Gillespie was surety, and. this was all the proof offered by plaintiff.
This question was decided in the case of Jones & Cullom vs. Knox (46 Ala., 53), and we think rightly. The discharge operated to release the defendant Gillespie from all his liabilities, except such as arose from a fiduciary relation ; but the surety occupied no fiduciary relation to any one, though the principal did.
In the case of Halliburton vs. Carter, (55 Mo., 435) this view is conceded; and, therefore, though a discharge of the principal would not release the sureties, a discharge of the surety, under the bankrupt law, will be a bar to any action based on such liability.
But it will be observed, that the petition in this case, alleged a bond, a suit on it by certain persons in the name of the State, a judgment in such suit, and a payment by plaintiff of the entire amount, and, therefore, he asks for contribution. The defendant first denies all the allegations of the petition, and then sets up the judgment in the case of State to use of Clark vs. Miller and others, as a res adjudicata.
This judgment, thus pleaded, had no bearing on the case. It was not between the parties to the present action. Both the plaintiff and defendant, in this suit, were defendants in that, and did not occupy a hostile position to each other; nor was any question of contribution between them involved or determined. The plaintiff had a right to dismiss as to Gillespie ; nor had Miller any right to an appeal or writ of error to reverse the judgment in favor of Gillespie. (Freeman on Judgment, § 158.)
But the plaintiff in this case, offered no proof of any bond, and the allegations of the petition being all denied, he made out no case; nor did the defendant plead bankruptcy or offer any proof on the subject.
The judgment must be reversed and -the case remanded;
