2 Kan. 184 | Kan. | 1863
By the Court,
Qn the 21th day of March A. D. 1859, the defendant in error commenced suit in the Third District Court for Wyandotte County, K. T., against the Quindaro Town Co., consisting as she averred, of Charles Robinson, Abelard Guthrie, and Samuel N. Simpson, to recover the amount due her on a promissory note set. out in her petition, as follows, viz:
<{ Quindaro, Kansas, June 11th, 1858.
On the. first day of November next, for value received we promise to pay Mrs. Lois Kinney or bearer, three hundred dollars with interest at the rate of three per cent, per month.
For the Quindaro Town Company, by Webb & Chapin, their. Agents. Charles H. Chapin, Surety.
Otis Webb, Surety.
S. N. -Simpson, Surety.”
There was an endorsement of twenty dollars paid by Simpson Nov. 25th, 1858, and judgment was claimed for $280, with interest at three per cent, per month from date of note.
On the 6th of June 1859, she recovered judgment against Guthrie, Simpson, Chapin and Webb, for $393.25, but the summons not having been served upon RobinsOn no judgment was rendered against him.
On .the 1th September 1861, the plaintiff in that action, defendant in error here, filed her petition in the Clerk’sOffice of the District Court for Wyandotte County, briefly setting
On this petition summons was issued to the Sheriff of Douglas County, duly served upon Robinson and returned, and on the 27th Sept. 1861, Robinson appeared by attorney and filed a demurrer on the ground that it did not contain facts sufficient to constitute a cause of action. At the next April term of the Court the demurrer was argued by counsel and overruled, counsel for Robinson excepting.
Robinson’s counsel then moved for leave to file an answer, which was granted, but the answer does not appear of record, but it was finally ordered by the Court that, the said defendant, Charles Robinson, be and he is hereby made a party defendant to the original judgment in this case, entered June 6th, A. D. 1859, for the sum of $393,25 upon the note mentioned in the petition, and that said plaintiff have and recover of the defendant Charles Robinson, the costs of this proceeding.
To secure a reversal of this order Robinson files his petition in error in this Court.
Of the various errors complained of, the only one that seems to require discussion here, is as follows:
“ Because it appears from the record that the judgment against Guthrie and others, is too large, as the note drew only the legal rate of interest after dxieP
On examination, we find that the original judgment to which plaintiff in error was made a party by the order complained of was rendered for the whole amount of the note, deducting the $20.00 endorsed as paid by Simpson, with interest thereon at the rate of three per cent, per month from the date of the note to the date of the rendition of the judgment. By inspection of the note as set forth in the record, it will be seen that it was dated June 11th, 1858, and made payable Nov. 1st, 1858, while the judgment was rendered June 6th, 1859, more than seven months after tfie note fell due. It will he seen at once
The Statute of Kansas in force at the time this judgment was 1‘endered, is precisely the same so far as applicable to this case as the Statute of Minnesota governing the case of Brewster v. Wakefield.
In that case Taney, C. J. remarks: “ The written stipulation as to interest is interest from the date to the day specified for the payment. There is no stipulation in regard to interest after the notes become due, in case the debtor should fail to pay them—the contracts being entirely silent as to interest, if the notes should not be punctually paid, the creditor is entitled to interest by operation of law and not by any provision of the contract.”
This language of the Chief Justice of the United States, supported as it is by the authority of Macomber v. Dun-ham, 8 Wend., 550, and United States Bank v. Chapin, 9 Wend., 271, and Ludwick v. Huntsinger, 5 Watts, and Serg. 51, must be held decisive of the point now under consideration.
The Statutes of Kansas Territory, in force at the time this contract was entered into, fixed the rate of interest at six per cent, per annum, where no rate was agreed on in writing by the parties. It is manifest therefore, that the judgment rendered June 6th, 1859 by the District Court Wyandotte County, was too large interest on $280.00, having been computed at the rate of thirty-six per cent, per annum instead of 6 per cent, per annum, from Nov. 1st, 858, to June 16th, 1859.
It remains to consider whether this error in the original judgment violates the subsequent order of the Court making Robinson a party to that judgment. The proceeding to make him a party appears to have been taken in pursuance. of Sec. 427 of the Code of Civil Procedure, {page 193, Comp. Loaos.)
Like all other provisions of the Code it was intended to assist parties in obtaining justice, and it is the duty of Courts so to construe and apply it that it may subserve the purpose of its framers without prejudice to the rights of any.
We have not been able to find any authority directly in point as to the section under consideration, but find it incidentally considered by the Superior Court of Cincinnati in the case of Leming & Co. v. Burguyne and Knowlton, 1st Handy’s Rep. 11.
In that case it was held that where judgment had been rendered against one of several defendants served, that the plaintiff might proceed against those defendants not served, by another summons, but that the right so to proceed was subject to the control and discretion of the Court under Sec. 37 of the Ohio Code,'(corresponding to Sec 381 of the Kansas Code,) and that the Court would exercise this control over the plaintiff’s proceeding in this mode whenever it would inconvenience the administration of justice or prejudice, the opposite party.
Eor the reasons above given, the order of the District Court making plaintiff in error a party to the former judgment, must be set aside, and the case remanded.