Dysart v. Crow

• Court: Missouri Supreme Court
• Writing for the Court: Valliant
• Citation: 70 S.W. 689,170 Mo. 275
• Decision Date: 26 November 1902
• Parties: DYSART et al. v. CROW et al.

70 S.W. 689 170 Mo. 275 DYSART et al.
v.
CROW et al. Supreme Court of Missouri, Division No. 1. November 26, 1902.

CONTRIBUTION BETWEEN SURETIES—EQUITY JURISDICTION—BILL—PARTIES—APPEAL—DEMURRER TO PLEADINGS—REVIEW—NEW TRIAL —EXCEPTIONS—NECESSITY.

1. An amended petition, demurrer thereto, and judgment on the demurrer, being matters covered by the record proper, the judgment is reviewable on appeal without a motion for new trial or exceptions.

2. Rev. St. 1899, §§ 4504-4509, providing for contribution between sureties, and authorizing an action at law by one surety, who has paid more than his proportion of the debt, to recover contribution from other sureties, provides a cumulative remedy only, and does not deprive such surety of his right to sue in equity for contribution.

3. Where, in a suit in equity by one surety to recover contribution from others, it was alleged that two parties defendant had paid their contributive share, the bill was not thereby rendered demurrable for misjoinder of such defendants.

Appeal from circuit court, Monroe county.

Action by B. G. Dysart and others against G. W. Crow and others. From a judgment in favor of defendants sustaining a demurrer to an amended petition, plaintiffs appeal. Reversed.

T. F. Hurd and Bodine & Reynolds, for appellants. Geo. W. Humphrey, J. M. Crutcher, T. P. Bashaw, and R. B. Bristow, for respondents.

VALLIANT, J.

This is a suit in equity for contribution. The plaintiffs, jointly with defendants Crow, Curtright, Lowenstein, Vaughn, and Crutcher, and one Charles M. Reed, now deceased, made their negotiable promissory note for $6,000, payable to Frank L. Pitts, who afterwards indorsed and delivered it to one Reynolds. After the maturity of the note, the plaintiffs jointly paid $4,000 on it, and subsequently, with defendant Crow, who contributed thereto $600, they paid the balance. The total amount thus paid for principal and interest was $8,657.39. Since the payment the defendants Vaughn and Crutcher have paid to plaintiffs their contributive shares, respectively. After the death of Charles M. Reed, the defendants T. W. P. Reed and Mary S. Reed qualified as executors of his will, and are in charge of his estate as such. Except the payment of $600 by Crow, and the contributions of Vaughn and Crutcher, as stated, nothing has been paid or contributed by the other defendants, or by Reed in his lifetime. The plaintiffs filed their bill in equity, stating in proper detail the above-mentioned facts, and praying for an accounting and contribution from those defendants

70 S.W. 690

who have not contributed, and for general equitable relief. The amended petition, upon which the judgment was rendered, is set out in full in the abstract of the record, but it is unnecessary to copy it in this statement. It is sufficient to say of it that it is in proper form and substance to entitle the plaintiffs to the relief prayed, unless it is defective in the particular features presently mentioned, specified in the demurrer. The defendants demurred to the amended petition, specifying 12 grounds, but the 12 assignments are reducible to 2, viz.: That a court of equity has not jurisdiction of the case; that there is a misjoinder of parties. The court sustained the demurrer, and, the plaintiffs not pleading further, final judgment for defendants was rendered. It appears from the record that the plaintiffs excepted to the ruling of the court sustaining the demurrer, and that they filed a motion for a new trial, based on the alleged error of the court in that respect, which motion was overruled, exception taken, and a bill of exceptions signed and filed, and made a part of the record. The cause comes here on the plaintiffs' appeal, who assign for error the sustaining of the demurrer to their amended petition.

1. The amended petition, the demurrer, and the judgment of the court on the demurrer...