126 Ind. 155 | Ind. | 1890
— This was au action by the appellee against the appellant for contribution. The complaint consists of two paragraphs. The first alleges that at a date named the appellee became a co-surety with the appellant on a promissory note, described, payable to Gaar, Scott & Co., upon which note John W. Cole and George W. Johnson were principals; that said principals failed to pay said note and that the sama was reduced to judgment against all the parties thereto, in the Benton Circuit Court, on the 8th day of February, 1887; that one Mallory, who was also a surety on said note, was a non-resident of the State of Indiana; that upon execution issued on said judgment, the appellee was compelled to and did pay the whole of said judgment, amounting to the sum of $546.30.
The second paragraph is the same as the first, with the additional allegations that during the year 1885, and for two years thereafter, the appellee was engaged in buying, selling and shipping grain, in the town of Ambia, in Benton county, Indiana, and that one Isaac W. Lewis was his partner, the firm name being T. J. Lewis & Co.; that in addition to said business, appellee was engaged in the sale of agricultural implements and machinery; that in the month of July, 1885, he sold to John W. Cole and George W. Johnson one Gaar, Scott & Co. engine for the sum of $1,500; that said Cole and Johnson executed their notes for said machine, with the appellant,Voss,and one Mallory as sureties thereon; that said Gaar, Scott & Co. refused to accept said notes unless appellee would also sign the same as surety; that for the purpose of accomplishing said sale he did sign said notes as surety; that from force of habit, in signing the firm name of T. J. Lewis & Co., when he signed said notes he signed the same “ T. J. Lewis & Co.” instead of signing his individual name, but that in fact the said Isaac W. Lewis was not a surety on said note.
The court overruled a demurrer to each paragraph of this
The first paragraph is a general denial, and the second paragraph avers that in the action of Gaar, Scott & Co. against the appellant and the appellee, and the other parties defendant in said action, the appellant filed his cross-bill, alleging that he was surety.for all said defendants, to which they waived the issuing and service of process; that, on the trial of said cause it was found and adjudged by the Bqnton Circuit Court that the appellant was surety for the appellee, and the other parties defendants to said judgment.
The appellee replied to the second paragraph of this answer by a general denial.
A trial by the court resulted in a finding and judgment for the appellee, from which this appeal is prosecuted.
The assignment of error calls in question the sufficiency of each paragraph of the complaint, and, also, the propriety of the ruling of the court in overruling the motion for a new trial.
Two objections are urged to the complaint:
First. That it undertakes to impeach the judgment rendered in favor of Gaar, Scott & Co. against the appellant and the appellee, and the other parties thereto; and,
Second. That there is a defect of parties defendant, in that Isaac W. Lewis and Charles Mallory should have been made parties defendant.
We do not think the complaint seeks to impeach the Gaar, Scott & Co. judgment. It does not appear upon the face of the complaint that the relation which the defendants in that judgment stood to each other was settled in that action.
If such relation was not litigated and settled, by proper issues tendered for that purpose, it still remained for settlement; and it was not an impeachment of the judgment to allege and settle in this action the question of suretyship, or any other question affecting the liability of the parties to each other.
Had Mallory been before the court no joint judgment could have been rendered against him and the appellant, but the judgment would have been a several judgment against each.
It was immaterial to the appellant whether the appellee, alone, was his co-surety, or whether it was the firm of T. J. Lewis & Co. The fact that T. J. Lewis & Co. was his co-surety, if such was the fact, did not lessen his liability.
The amount to be contributed by the appellant was the same whether the appellee alone was liable on the Gaar, Scott & Co. note, or whether the firm of T. J. Lewis & Co. was liable. But we think it was competent for the appellee to aver and prove that he signed the note “ T. J. Lewis & Co.,” intending thereby to bind himself alone, and that the firm of T. J. Lewis & Co. was not bound by such signing. The firm of T. J. Lewis & Co. paid no part of the Gaar, Scott & Co. judgment, and if it was never liable thereon it had no interest in the question of contribution between those who were liable.
In our opinion the court did not err in overruling the demurrer to the complaint.
No question is made in the case as to the actual fact that the appellant and the appellee were both sureties on the note executed to Gaar, Scott & Co. The question, therefore, as to whether the finding and judgment of the court are sustained by the evidence must, of necessity, depend largely upon the record made in the case of Gaar, Scott & Co. against the parties to this suit, resulting in the judgment paid by the appellee. It appears by that record that on the 4th day of
The question as to whether the co-defendants of the appellant entered an appearance to this cross-bill must be tried and determined by the record in the cause in which it was filed. McCormack v. First Nat’l Bank, etc., 53 Ind. 466; Rhoades v. Delaney, 50 Ind. 468.
It does not appear by the record before us that the appellee in this case ever appeared to the cross-bill in the case of Gaar, Scott & Co. against him and the appellant.
As we understand the brief of counsel for the appellant, it is not claimed that any process was ever issued upon the cross-bill, but the contention is that as the parties thereto were in court, appearing and answering in the original case, they were bound to take notice of the filing of the cross-bill. In support of his contention the appellant relies upon the case of Lewis v. Bortsfield, 75 Ind. 390.
That was a partition suit, brought by Bortsfield, in which he alleged in his petition that he and Susannah Goings were each the owners of the undivided one-seventh part of the land described therein, and that Lewis was the owner of the undivided five-sevenths thereof. Susannah Goings filed a cross-bill, in which she alleged that she was the owner of an undivided one-seventh of the land, and prayed that her in«
A case like this is readily distinguishable from a case like the one at bar, where an entirely new element is introduced, having no reference to the controversy growing out of the matters alleged in the complaint. The general rule is that in a cross-bill such as the one now before us, the defendants thereto must be brought into court by process, unless they voluntarily appear. Fletcher v. Holmes, 25 Ind. 458; Joyce v. Whitney, 57 Ind. 550; Anderson v. Wilson, 100 Ind. 402; Swift v. Brumfield, 76 Ind. 472; Baldwin v. Webster, 68 Ind. 133; Jenkins v. Newman, 122 Ind. 99.
As to whether the general rule is stated too strongly in the case of Lewis v. Bortsfield, supra, we need not stop to inquire in this case, for the reason that here the cross-bill was filed by the attorney representing all the defendants.
There is no error in the record.
Judgment affirmed.