Aven v. Singleton

• Decision Date: 07 May 1923
• Docket Number: 23161
• Citation: 132 Miss. 256,96 So. 165
• Court: Mississippi Supreme Court
• Parties: AVEN et al. v. SINGLETON et al

96 So. 165

132 Miss. 256

AVEN et al. v. SINGLETON et al

No. 23161

Supreme Court of Mississippi

May 7, 1923

March 1923

1 CONTRIBUTION. Joint debtors may sue joint signers of note for contribution, and as many judgments may be entered as is necessary to adjust rights of parties.

Under section 729, Code 1906 (section 512 Hemingway's Code) providing that a declaration at law shall contain a statement of the facts constituting the cause of action in concise language, and that, if it contain enough matter of substance to disclose the merits of the cause, it shall be sufficient and that it shall not be an objection to maintaining an action that the form should have been different, and under sections 813 and 814, Code 1906 (sections 601 and 602 Hemingway's Code), providing that judgment may be rendered for or against one or more plaintiffs or defendants as the right may appear, and shall state separately any amount allowed to pay any of the parties, and that as many judgments and verdicts, joint, separate, and cross, may be rendered as may be necessary to adjust the rights of several parties in the same action, several joint debtors who have paid the joint obligation may sue several joint signers of a note who have not paid any part thereof in the circuit court by stating in their declaration the facts upon which their rights are founded for contribution; and as many judgments may be entered in such suit as may be necessary to adjust the rights of the parties.

2. PARTIES. Misjoinder of parties in declaration at law must be raised by plea, and not by demurrer.

The misjoinder of plaintiffs and defendants in a declaration at law cannot be raised by demurrer, but must be raised by plea under sections 722 and 723, Code 1906 (sections 505, 506, Hemingway's Code); and, where necessary, when so raised, the declaration may be amended so as to obviate the objection, and so as to bring the cause to trial on its merits. Therefore a demurrer to a declaration at law on such grounds cannot be sustained.

SMITH, C. J., and SYKES, J., dissenting.

HON. T. L. LAMB, Judge.

APPEAL from circuit court of Grenada county, HON. T. L. LAMB, Judge.

Suit by C. O. Aven and others against W. D. Singleton and others. From a judgment sustaining a demurrer to and dismissing the declaration, plaintiffs appeal. Reversed and remanded.

Judgment reversed, and cause remanded.

Bruce D. Newsom and Wells, Stevens & Jones, for appellants.

We wish to say with reference to every Mississippi case cited by counsel for appellees that none of them are in point here, and for two reasons: 1. None of the cases cited involve a suit between makers of a note against co-makers, to enforce the liability of those co-makers who have not paid any part of the note. 2. All of the cases relative to the doctrine of contribution, and to the effect that the remedy of a co-maker in such cases is for contribution in equity, were decided before the present law became effective, and even before the act of February 24, 1844, as found in article 11, page 555, et seq. of Hutchinson's Mississippi Code.

We have no issue with counsel for appellees about the doctrine of contribution, which is certainly a valuable remedy in such cases even now; and before the passage of the act, whose forerunner was the act of February 24, 1844, it was the sole remedy of course. Our contention at the present time is that the statute did create a new remedy enforceable in the circuit court.

Counsel for appellees has much to say over the language used in the declaration: "They are the holders of the said notes in due course, for valuable consideration, and sue thereon as said holders." As between co-makers, those who pay off the notes and have a right of action on the notes against those co-makers not contributing to paving off the notes, certainly stand in the position of legal holders of the notes for valuable consideration to the extent of their right against the delinquent co-makers, and to that extent they are holders in due course. The term "holders in due course" simply means legal holders with a right to enforce the notes either in whole or pro tanto, and is a right given by the statute which makes them legal holders with a right of action against the delinquent co-makers. We submit that the declaration does state a cause of action, even if the court should hold technically the appellants are not holders in due course.

It is true, as counsel for appellees states, that the forerunner of the present law is found, not in the Code of 1857, as stated in our original brief, but in the act of February 24, 1844, found in Hutchinson's Mississippi Code, article 11, page 555, et seq., but counsel has not demonstrated that the argument we made on page 10 of our original brief, with reference to the change in the law by the Act of 1844 is erroneous. The law prior to 1844 is found, as stated in our original brief in Hutchinson's Mississippi Code, page 837, paragraph 26, which we quote in full on page 10 of our original brief, but in the act of February 24, 1844, found in Hutchinson's Mississippi Code, Article 11, page 555, et seq., but counsel has not demonstrated that the argument we made on page 10 of our original brief. Substitute the year 1844 for the year 1857, and the argument still applies with full force. In short, whenever this law did come into effect, and it did in 1844, it changed the previous law so as to create a remedy on the note in favor of those makers of the note paying all of it, as against those co-makers who did not pay their part.

With reference to the failure of the court to give a judgment against those appellees not objecting to the jurisdiction of the lower court, we submit that it was no fault of the appellants that they did not get this judgment. The court sustained the demurrer as to all parties, and its judgments so show. Neither can any action of the appellants change the constitutional provision of section 157 of the Constitution which makes it mandatory upon the circuit court to transfer to the chancery court any cause whereof the chancery court has jurisdiction.

We submit, however, that in this case the circuit court had full jurisdiction, and that the cause should be reversed and remanded.

Cowles Horton, for appellees.

I think learned counsel misconceive the position of the appellees and the judgment of the court below. The question is, not whether appellants can maintain a suit in the circuit court, but whether they can maintain this suit tit all. We maintain they cannot, that they are not "holders in due course" with rights and remedies given by the law to such persons, but that their rights and their remedies arise out of the fact that they discharge a common burden and, since they do so, are entitled to maintain an action, not on the notes, but for contribution because they paid the notes. This position, if sound, makes it imperative that the judgment appealed from be sustained.

When these notes were executed Mr. Holcomb acquired certain rights against these makers. When these appellants paid these notes, they became satisfied for all purposes and thereafter neither Mr. Holcomb nor anyone else had any right to maintain an action on the notes. By virtue of the fact, however, that eight of these makers had discharged a common burden for all of them, these appellants acquired the right to enforce contribution against these other makers for their pro rata of this burden, and this, we submit, is the only right that they did acquire. This, however, is just exactly what they did not seek by this suit and is just what the court could not have granted under this declaration.

It is a glorious maxim of the law that "there is no right without a remedy," and I think it just as true also that there can be no remedy unless to enforce some right. To determine, therefore, whether this suit can be maintained, we are bound to determine first what appellants rights are. They were co-makers of the note and liable for the payment. They discharged obligations resting on all of these makers and satisfied these notes--evidencing an express obligation on the part of all of them to pay Mr. Holcomb certain sums of money. Because they did so, natural justice and principles of equity created in their favor the right--not to sue on these notes as holders in due course, but to enforce contribution from their co-makers to the extent of the latter's liability. Their position and the position of a holder in due course have nothing whatever in common, do not arise from the same principle and are not governed by the same rules at all. A "holder in due course" suing on the instrument itself has under the law certain rights which, as we shall hereinafter show, these appellants do not have, and the rights and the remedies of the one are not in anywise the rights and remedies of the other. If this is not so, then there would be no reason for this principle of equity at all.

In 9 Cyc. 794 and 800, on liability, the statement is made that "the right to contribution has its foundation in, and is controlled by principles of equity and natural justice and does not arise from contract; but, although the doctrine so originated, it is now almost universally enforced in courts of law on the theory of an implied contract of contribution existing between parties jointly liable ex contractu."

It is certainly true at this time that contribution can be enforced in the law courts; nevertheless the basis of the right and the foundation of the suit, whenever brought, is just exactly the same--not on the express contract of all, but on that very principle of equity and justice that requires the party sued to bear his part of the common burden. But this right is something that never arises out of the fact that ...