Sevier v. Roddie, 51 Mo. 580

Sevier v. Roddie

51 Mo. 580 | Mo. | 1873

Adams, Judge,

delivered the opinion of the court.

This case came here on a demurrer to the plaintiffs’ second amended petition, which was sustained by the Circuit Court. The petition alleges in substance that plaintiffs were the sureties of the defendant in the state of Tennessee on two several bonds for payment of money; that a judgment was obtained in Tennessee in a court of general jurisdiction against the plaintiffs and defendant, and that the plaintiffs as the sureties of defendant paid the amount of such judgment and costs, and that afterwards, and without any notice to defendant, a judgment was rendered in the Tennessee court in favor of plaintiffs, for the amount they so paid as sureties for 'defendant; and the petition sets forth the"statutory law of Tennessee, which allows judgments of this character to be rendered in summary proceedings in favor of sureties, jointly or severally, and the petition then prays judgment for the amount of the Tennessee judgment so rendered íd favor of plaintiffs as defendant’s sureties.

1. If it was the design of the plaintiffs to base their right of recovery upon the summary judgment rendered in their favor by the Tennessee court without any notice to the defendant, it is clear to my mind, they have no standing in court. Whatever force a judgment may have under the statutory laws of Tennessee, it can have no extra-territorial validity so as to authorize a recovery here. (Salle vs. Hays, 3 Mo., 116; Gillett vs. Camp and Wife, 23 Mo., 375; Foote vs. Newell, 29 Mo., 400; Smith vs. McCutchen, 38 Mo., 415; Roach vs. Burns, 33 Mo., 319; Sto. Confl., Laws, § 539; Abbot vs. Shepherd, 44 Mo., 273; Latimer vs. Union Pacific Railway, 43 Mo., 105.)

*5862. If tlie plaintiffs are suing for money paid by them as sureties for defendant on the implied assumpsit of the defendant as principal to refund the amounts so advanced by them, then the objection that they cannot join as plaintiffs in such suit is well taken. At least there is nothing in this petition to show that the defendant’s obligation or duty towards them, was a joint one. They did not undertake as partners or jointly to become the sureties of defendant. N o such allegation is made in the petition and the natural inference therefore is, that each must stand on his own rights as a separate surety. They cannot join in an action at law for the recovery of the moneys advanced by them, the implied promise being to each separately and not to them jointly, (Gould vs. Gould, 8 Cowen, 168; 3, B. & P. 225, 2, T. R. 283.)

In suits to be subrogated to the rights of the creditor on collaterals held by him, sureties are allowed to join and indeed must join, because in equity they are jointly interested, to the extent of the payments made by each, in such collaterals.

Judgment affirmed.

The other judges concur except Judge Vories not sitting.