Quinn v. Alexander

88 So. 170 | Miss. | 1921

Smith, C. J.,

delivered the opinion of the court.

The appellant seeks by an original bill in equity to enjoin the sheriff of Bolivar county from selling her property under an execution on a judgment. She was granted a temporary injunction, but it was afterwards dissolved, and from the decree dissolving it an appeal was granted to this court to settle the principles of the case.

It appears from the record that in November, 1909, Alexander executed to the appellant a promissory note payable on demand, which was thereafter sold by the appellant to the First State Bank of- Shaw; she guaranteeing the payment thereof by the following memorandum written on the back of the note above her .signature:

“I guarantee payment of the within note, including interest and attorney’s fees, waiving presentment for payment and notice of protest.”

Alexander having failed to pay the note, W. G. Hardee, the receiver for the First State Bank of Shaw which had become insolvent, instituted an action at law thereon in the circuit court of Bolivar county against both Alexander and the appellant herein, and recovered a judgment against them. A separate appeal from this judgment was taken to this court by each of the defendants, each executing a separate appeal bond, and in due course the judgment of the court below was affirmed and a judgment rendered in this court in favor of Hardee, receiver, against the appellants, and the sureties on their two bonds. Neither the judgment rendered in the court below nor the one rendered here on appeal sets forth that Alexander was the maker of the note and'that the. appellee was the payee therein, or that either of them was the principal debtor. Execution was issued on this judgment by the clerk of the court below, and it was paid by Tonkel, one of the sureties on the appeal bond executed by Alexander, and thereafter another execution was issued on the judgment for Tonkel’s benefit under the provisions of section 3735, Code of 1906, Hemingway’s Code, section 2911. The sheriff was proceeding under this execution to sell property belonging to the appellant when he was enjoined from so doing as herein before set forth.

The contention of counsel for the appellant is that the action in which the judgment on which the execution was issued was rendered was on a promissory note on which the appellant was an indorser and liable only in event it cannot be collected from Alexander., from which one of two results must follow: (1) That when Tonkel paid the judgment he did only that which he had guaranteed his principal, Alexander, would do, and, consequently, in so far as the appellant is concerned the judgment has been discharged and Tonkel can look only to Alexander, the principal in the bond on which he was surety, for payment; or (2) that under section 4015, Code of 1906, Hemingway’s Code, section 2577, the clerk of the court below should have noted on the execution that Alexander was the maker and the appellee an indorser on the note sued on, and that the sheriff should not levy on property of the appellant until the property of Alexander has been exhausted without the judgment being satisfied.

First. That Tonkel was a surety on Alexander’s, and not on the appellant’s appeal bond, is of no importance here, for section 3735, Code of 1906, Hemingway’s Code, section 2911, does not provide that a surety paying a judgment rendered against his principal “shall have all the liens and equities” which the creditor in the judgment has against the surety’s principal but that he “shall have all the liens and equities” which the creditor has in the judgment.

Second. Placing on one side the fact that the judgment on which the execution was issued does not designate the character of the parties defendant therein, and that the clerk issuing the execution did not note the character in which they were sued on .the execution, and leaving out of view the questions argued in connection therewith, section 4015, Code of 1906, Hemingway’s Code, section 2577, can have no application here, for in so far as Hardee, the receiver for the First State Bank of Shaw, to whose rights Tonkel has been subrogated, the appellant’s liability, because of the guarantee executed by her to the bank, became fixed by the failure, of Alexander to pay the note, and in so far as the rights of the judgment creditor are concerned, her liability is that of a principal debtor. Tatum v. Bonner, 27 Miss. 765; Baker v. Kelly, 41 Miss. 696, 93 Am. Dec. 274.

Affirmed and remanded. (