Ruff v. Montgomery

83 Miss. 185 | Miss. | 1903

Whitfieold, O. J.,

delivered the opinion of the court.

Blackard, the payee in a promissory note, sued Rhea the maker and Ruff and Montgomery, Rhea’s sureties on said note, before a Justice of the Peace. Montgomery plead notice and release under § 3276 of the code of 1892; the pleadings, of course, were not in writing. All the parties were present at the trial in the court of the Justice of the Peace. Judgment was rendered by the Justice of the Peace releasing Montgomery on the ground that he had given due notice under the statute; this recitative being made in the face of the judgment. The Justice of the Peace rendered judgment against Ruff for the amount claimed, less a certain off set of about fifty dollars allowed Ruff. No appeal was taken by any party from that judgment to the circuit court. Ruff afterwards paid off the judgment, and then brought a suit at law against Montgomery for contribution in the court of the said Justice of the Peace. This cause was tried and appealed to the circuit court, where judgment was rendered in favor of Montgomery, and Ruff appeals to this court.

Montgomery’s defense was that the judgment in the first suit before the Justice of the Peace, releasing him from all liability, is a bar to any recovery against him by Ruff for contribution, the said judgment of the Justice of the Peace standing unre-versed. Ruff should have appealed from the judgment of the Justice of the Peace, holding him and releasing Montgomery. On such appeal there would have been presented for decision not only the right of the creditor to hold Ruff but the rightfulness of the release of Montgomery. Ruff, had the right, necessarily, to have that question also examined and determined on appeal, because of the fact that the release of Montgomery directly affected the measure of Ruff’s liability to Blackard, the plaintiff. He had an appealable interest in the rightfulness of the determination of the Justice of the Peace in discharging Montgomery. As said in. 2 Cyc., page 638: “In legal acceptation a party is aggreived by a judgment or decree when it operates on his rights of property or bears directly upon his interest.” See also, Humphrey v. Hunt, 59 Pac. Rep., 971; and Ballard v. Kennedy, 16 So. Rep., 327 (decided Nov. 1894), where it was held that “where the heirs at law of a deceased mortgagor have been made parties defendant, along with the administrator of the decedent, to a bill for foreclosure of a mortgage upon the lands of the deceased and have had their pleadings to such bill stricken out, and the bill has been dismissed as to them, a final decree, however, being rendered against the administrator alone, such heirs at law are so affected by such final decree, under the law in Florida, as to give them the right to an appeal from such final decree, though they are not named as parties thereto.” And see Athinson v. Foxworth, 53 Miss., 739.

The extent of Ruff’s liability was directly affected by Montgomery’s discharge, and the relation between Ruff and Montgomery was such arising out of their suretyship contract, and the principles of contribution flowing therefrom, that it would have been perfectly proper on the appeal to have determined the rightfulness of Montgomery’s discharge.

This being so the.judgment constitutes a bar to any recovery ■from Montgomery as properly held by the circuit judge. This point is settled in the case of Ramey v. Purvis, 38 Miss., where the conrt say:

“But is it contended that tbe discharge of one surety must work a discharge of the other, because the claim for contribution which the latter, in case of payment of the debt by him, had against the former, by virtue of the original obligation, ■ is thereby destroyed. If this be conceded to be true, it does not show that the surety, failing to avail himself of the privilege authorized by the statute, is discharged by the act of his co-surety. Bor the statute provides how one surety may be discharged. It authorizes the discharge of one surety in a particular manner, and is silent as to the liability of others; and it is, in respect to the objection under consideration, tantamount to authority given to the creditor to release one of two sureties in a specified mode. It was, then, a part of the law in relation to the rights of sureties; and the contract of suretyship must be considered as having been entered into with reference to it, and the rights of the parties to it be governed by it; for the statute incorporated into the revised code, and which thereby appears to be of subsequent date to this note, is in substance but a re-enactment of the statute of 1854, ch. 27, Hence if the effect of the discharge of the surety Thompson be to leave his co-surety, who is not discharged from the plaintiff’s claim, without remedy for contribution against him, it is a result produced by the statute, allowing one surety to be discharged without affecting the creditor’s claim against his co-surety. The contract of the sureties was entered into subject to the rule established by the statute, which governs both their liabilities and their rights, and the statute cannot be held to prejudice the .rights of the creditor further than its positive provisions require.”

Affirmed.