12 Kan. 50 | Kan. | 1873
The opinion of the court was delivered by
On May 2d 1872, C. H. McCormick & Bro. brought an action before a justice of the peace on a certain promissory note against Thomas R. Points, Josephus Jacobia, and Jacob Jacobia. Personal service of summons was had on Thomas R. Points and Jacob Jacobia. No service was had on Josephus Jacobia, and he made no appearance in
“Sec. 470. In all cases where judgment is rendered in any court of record Avithin this state upon any instrument of Avriting in Avhich 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 bail for his or their co-defendant, it shall be the duty of the clerk of said court, in recording the judgment thereon, to certify Avhich of the defendants is principal debtor, and which are sureties or bail.”
And said section further provides that in all cases the property of the principal debtor shall be exhausted before any of the property of the surety or bail shall be taken in execution. (Gen. Stat., 720,721.) It is claimed that this section applies to courts of record only, and not to justices courts, which are not courts of record. But we should think that § 185 of the justices act Avould make this section applicable
“Sec. 185. The provisions of an act entitled 'an act to establish a code of civil procedure/ which are in their nature applicable to the jurisdiction and proceedings before justices, and in respect to which no special provision is made by statute, are applicable to proceedings before justices of the peace.” (Gen. Stat., 814.)
It is claimed however that the provisions of said § 470 of the civil code are not in their nature “applicable to the jurisdiction and proceedings before justices.” But why they are not applicable, we are not definitely informed. It would seem however from § 139 of the justices act that the same legislature that passed both the code and the justices act intended that the provisions of said § 470 should be applicable to justices courts. Said §139 provides among other things as follows: “The execution must require the constable substantially as follows: * * * Second: If it be a case where any of the judgment-debtors are certified on the justice’s docket as surety, it shall command that the money be made of the personal property of the principal debtor, and for want thereof of the personal property of the surety. In such case the personal property of the principal subject to execution within the jurisdiction shall be exhausted before any of the property of the surety shall be taken in execution.” (Gen. Stat., 805.) Now, if said §470 of the code does not apply to a justice’s court then that portion of § 139 of the justices act above quoted is absolutely nugatory, and can have no possible.application anywhere. This is not the manner in which courts construe statutes. Courts as a rule construe statutes so as to give every portion of the statutes some force and effect, some application and some operation. With regard to the application of statutes of other states similar to ours, see Swan’s Treatise for Justices of the Peace, 195, ch. 18, § 14. We suppose no question will be raised because the note sued on in this case is in form joint, and not joint and several; for under our statutes every such note
The judgment of the court below is affirmed.