82 Mo. 46 | Mo. | 1884
This action was instituted in a justice’s court on the 27th day of September, 1880, in Montgomery county, by the plaintiff, Simeon Sisk, against one O. E. Musler and the defendant, founded on a promissory note,
The evidence at the trial showed, substantially, that on the 20th day of September, 1880, the defendant, Rosenberger, served notice, in writing, on the plaintiff, that he was surety only on said note, and requiring him to bring suit forthwith against the said Musler as the principal debtor therein, as provided by the statute in such case. Accordingly the plaintiff did bring this action in a justice’s court in Montgomery county, where the plaintiff and the defendant Rosenberger resided. The evidence shows that said Musler then resided in St. Louis, and that plaintiff knew this fact when he brought suit. The writ of summons was duly served on the defendant, Rosenberger, but was returned von esi as to said Musler. When the case was called for trial the plaintiff dismissed the action as to Musler, .and took judgment alone against Rosenberger. From this judgment Rosenberger appealed to the circuit court, where on trial de novo the plaintiff again had judgment, and the defendant has appealed to this court from said judgment. The evidence quite clearly shows that the defendant was surety on said note for said Musler.
The defendant at the trial in the circuit court asked instructions to the effect, that if the court found from the the evidence that he was only surety on said note for Musler, and had given notice as provided by statute to plaintiff to bring suit thereon forthwith, and that plaintiff' had brought suit in a justice’s court against Musler and defendant, and dismissed the action as to Musler, as shown by the record, he could not recover. The court refused this declaration of law, and, sitting as a jury, rendered judgment on the facts against the defendant.
The object of the statutory provisions (R. S. 1879 §§
But, the plaintiff insists that as the amount of the note in question was within the jurisdiction of a justice’s court, he had a right to select that jurisdiction, which was in the county where he and the surety resided, aud as the process of summons could not go from said justice’s court to St. Louis, he was justified in dismissing as to the nonresident principal, and taking judgment against the resident surety duly served. Reliauce for this proposition is
So on the other hand, under the invocation of this conservative spirit of construction, where the creditor, upon notice from the surety to proceed against the principal may sue both principal and surety in the county where the surety resides, he should do so. Here the circuit court of Montgomery county, where the creditor and surety resided, had jurisdiction over the amount of the note. The plaintiff could have sued the defendant in the circuit court, and sent summous to St. Louis for Musler and brought him into court. This course would have been just and reasonable to all concerned. It would have been a complete answer to the objection, if interposed by defendant, the surety, that plaintiff might have sued in a justice’s court at an earlier day. The plaintiff knew when he brought this suit in the justice’s court that Musler resided in the City of St. Louis. He knew he could not sue him in a justice’s court in Montgomery county. By so suing he chose not to sue him at all, de
On the evidence the circuit court should have found the issues for the defendant. Its judgment, therefore, should he reversed and the cause remanded, with directions to proceed in conformity with this opinion.