Chrisman's Adm'x v. Harman

• Decision Date: 06 December 1877
• Citation: 70 Va. 494
• Court: Virginia Supreme Court
• Parties: CHRISMAN'S adm'x v. HARMAN & al.

70 Va. 494

CHRISMAN'S adm'x v. HARMAN & al.

Supreme Court of Appeals of Virginia.

December 6, 1877

1. A surety on an injunction bond for the second endorser of a negotiable note, who has been compelled to pay said note, is entitled to recourse against the first endorser to recover the amount so paid.

2. Such surety is not barred from such recourse by the fact that in a suit in equity, brought by the holder of such note against the maker and endorsers, a decree was rendered in favor of the first endorser.

3. Nor is such surety barred of such recourse by the fact, that in another suit in equity, brought by the second endorser to establish the liability to him of the first endorser, the bill was dismissed upon answer and demurrer, there being set out several causes of demurrer, of which some went to the merits of the controversy, and others did not, and it not appearing for what cause the bill was dismissed.

4. It is settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear either upon the face of the record, or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record, as for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment was rendered, the whole subject matter of the action will be at large and open to a new contention, unless the uncertainty be removed by extrinsic evidence showing the precise point involved and determined.

5. The doctrine touching estoppel by matter of record, stated by Burks, J.

This case was heard at Staunton, but was decided in Richmond. It was an appeal from a decree of the circuit court of Frederick county, rendered in a cause in which M. G. Harman was plaintiff, and John H. Chrisman's administratrix and G A. White were defendants. The object of the suit was to recover from Chrisman's estate the amount which Harman had paid as surety of White in an injunction bond, to the holder of a note made by Trussell & Coburn and endorsed successively by John H. Chrisman and G. A. White. The questions involved were whether Harman, having as the surety of White in the injunction bond, paid the debt to the holder was entitled to be substituted to the rights of White against the prior endorser, John H. Chrisman; and whether Chrisman's estate was not protected from such liability by decrees made in prior suits between the holder and the other parties to the note, and one by White against Chrisman and others.

It appears that M. G. Tuley brought a suit in equity against Trussell & Coburn as the makers, and Chrisman and White as endorsers, of a note which the plaintiff alleged had been made and endorsed by these parties, and had been protested for non-payment, and notice given to the endorsers; and which was lost. The bill was taken for confessed as to the makers and White. Chrisman answered denying his endorsement and notice, and calling for proof. And there being no proof of Chrisman's having endorsed the note, when the cause came on to be heard the bill was dismissed as to him, and there was a decree for the amount of the note against the makers of the note and White.

Subsequent to the term at which this decree was rendered, White filed a petition for a rehearing and an injunction. An injunction was granted, upon the condition of White's executing a bond with surety in the penalty of $3,000, conditioned according to law; and the bond was given, with M. G. Harman as the surety. This was in April, 1870. In June, 1870, the case came on upon the petition, and the note with the protest and notice having in the meantime been found, the court refused the petition and dissolved the injunction; and Mrs. Tuley was authorized to proceed in her suit to subject White's land.

In November, 1870, White filed his bill to review the decree first rendered against him, on the ground of after discovered evidence, making M. G. Tuley, Trussell & Coburn, and Chrisman defendants, and asking that Chrisman, as the prior endorser on the note, might be held liable over to him for the amount by said decree adjudged against him (White).

To this bill Chrisman demurred and answered, the demurrer being in the answer; and he stated six grounds of demurrer. 1. That it did not appear from said bill or otherwise that leave had been obtained to file the bill 2. The plaintiff not having answered the original bill, but the same having been taken for confessed as to him, he will not be permitted to bring his bill of review to repair the consequences of his laches and neglect. 3. The decree was not a final decree as to the plaintiff. 4. The decree was a proper decree, even if the alleged newly discovered evidence had been before the court. 5?? That it did not appear by the bill of review that the decree complained of had been performed by the complainant. 6. Want of equity on the face of the bill and possession of the note precludes the jurisdiction of this court. And answering, he denies that plaintiff has any after discovered evidence which could not have been produced at the hearing of the cause by the exercise of reasonable diligence.

Chrisman having died, the case was revived against his administratrix and the cause coming on to be heard in June, 1874, the bill of review was dismissed as to Chrisman's administratrix with costs against White. Tuley then sued upon the injunction bond, and recovered a judgment against White and Harman which was satisfied by Harman. And he then filed his bill against Chrisman's administratrix and White, to have satisfaction out of the estate of Chrisman. And the court, at its June term, 187...