Wainwright v. Atkins

61 So. 454 | Miss. | 1913

Cook, J.,

delivered the opinion of the court.

This suit was begun by attachment in the justice of the peace court, and was based upon an assigned judgment rendered by a Louisiana court in favor of J. T. Steele against M. E. Wainwright and J. W. Atldns, appellee. It appears that a draft was drawn by one H. W. Wainwright in favor of J. T. Steele upon appellant, M. E. Wainwright, which was accepted by him and indorsed by appellee, J. W. Atkins. The payee, J. T. Steele, instituted suit against the drawer, the drawee, and J'. W. Atkins, the indorser, and judgment was rendered by the Louisiana court against appellant, the drawee and acceptor of the draft, and J. W. Atkins, the indorser thereof. Subsequently J. W. Atkins purchased and had this judgment assigned to him, paying therefor one hundred and ninety-eight dollars, for which sum this suit was brought. The circuit court directed the jury to find for plaintiff for the full amount sued for, and from this judgment an appeal is prosecuted to this court.

It is contended- that the judgment of the Louisiana court upon its face was for more than two hundred dollars, and therefore the justice of the peace had no jurisdiction of the cause, and, the justice of the peace having no jurisdiction, the circuit court was without jurisdiction. Earnest argument and much mathematics are used by learned counsel to demonstrate the soundness of this contention. If we understand the record in the Louisiana court, and we think we do, it is entirely unnecessary to figure against counsel, or to even cast any suspicion or doubt upon their mathematical calculations. If it be true, and it must be true, because “figures do not lie,” it does not follow that plaintiff below had a right to sue defendant for the full amount of the judgment. It seems to us clear that plaintiff was merely an indorser and surety, and as such he could not sue the principal debtor for more than he was compelled to pay to release himself from the judgment. It is undisputed that he paid one hundred and ninety-eight dollars for the judgment, and defendant could have demanded a cancellation of this judgment upon the payment of this; sum and legal interest, and so we are of the opinion that plaintiff invoked the jurisdiction of the proper court.

Again, it is said plaintiff in no event could recover more than one-half of the amount he paid for the judgment, because the judgment was rendered against Mm and the defendant “jointly and in solidoWe think that, being a surety, plaintiff, when he satisfied the judgment against himself and his principal, could recover the full amount paid by him to accomplish tMs end. As between the principal and surety, the surety was not compelled to contribute.

Lastly, it is insisted that the record of the proceedings in the Louisiana court shows that tMs court did not have jurisdiction to render the judgment. This contention is based upon the theory that the record shows appellant was only constructively served with process. We think this is a misconception of the record. It appears from the record that appellant appeared and there said that he could not make a defense to the suit without an inspection of the draft he was alleged to have accepted. His demand for oyer of the writing was answered by plaintiff filing the original draft.

Affirmed.