Gibson v. Talley

• Decision Date: 05 July 1943
• Docket Number: 4-7107
• Citation: 174 S.W.2d 551,206 Ark. 1
• Parties: Gibson v. Talley
• Court: Arkansas Supreme Court

174 S.W.2d 551

206 Ark. 1

Gibson v. Talley

No. 4-7107

Supreme Court of Arkansas

July 5, 1943

Appeal from Pulaski Circuit Court, Third Division; J. S. Utley Judge.

Affirmed.

Smith & Judkins and W. M. Ponder, for appellant.

Wayne W. Owen, for appellee.

OPINION

McFaddin J.

This appeal involves but one question: venue. Appellants John K. Gibson and Josephine Gibson executed their note to the Bank of Swifton as follows:

"$ 1034.18 Swifton, Ark. August 18, 1937

"November 1, 1937, after date, I, we, or either of us, promise to pay to the order of The Bank of Swifton one thousand thirty-four and 18/100 dollars, for value received at The Bank of Swifton, Swifton, Arkansas, with interest at the rate of eight (8) per cent. per annum from date until paid. Interest due and payable annually, and if not paid when due, to become as principal and bear a like rate of interest until paid. And further agree that if this note is not paid at maturity to pay all cost of collection including an attorney's fee. The makers and endorsers of this note hereby severally waive presentment for payment, notice of non-payment and protest and the consent given for the time of payment to be extended without notice.

"Jno. K. Gibson

"Josephine R. Gibson" (Tr. 15)

The bank indorsed the note to W. D. Morgan, and he indorsed it to appellee, Talley. Talley brought suit against the Gibsons and Morgan in Pulaski county, serving Morgan in Pulaski county, where he resided, and serving the Gibsons in Lawrence county, where they resided. The Gibsons moved to quash service claiming they were entitled to be sued in the county of their residence, and that they were not jointly liable with Morgan on the note because they were primarily liable as makers and Morgan was only secondarily liable as indorser. From a trial on the merits and a final judgment against Morgan and the Gibsons, comes this appeal by the Gibsons.

We hold that the Gibsons were properly sued in Pulaski county since Morgan was a resident of Pulaski county and was served in that county and since judgment was rendered against Morgan along with the Gibsons. There was no claim that Morgan and Talley had entered into any collusion to obtain venue in Pulaski county of the suit against the Gibsons. This action on the note comes within § 1398 of Pope's Digest, which is: "Every other action may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned."

Section 1400 of Pope's Digest provides: "Where any action embraced in § 1398 is against several defendants, the plaintiff shall not be entitled to judgment against any of them on the service of summons in any other county than that in which the action is brought, where no one of the defendants is summoned in that county or resided therein at the commencement of the action, or where, if any of them resided, or were summoned in that county, the action is discontinued or dismissed as to them, or judgment therein is rendered in their favor, unless the defendant summoned in another county, having appeared in the action, failed to object before the judgment to its proceeding against him."

These sections must be considered along with § 521 of Pope's Digest, which is from the Revised Statutes of 1837, and which reads: "All indorsers or assignors of any instrument in writing assignable by law, for the payment of money alone, on receiving due notice of the nonpayment or protest of any such indorsed or assigned instrument in writing, shall be equally liable with the original maker, obligor or payee of such instrument, and may be sued for the same at the same time with the maker, obligee or payee thereof, or may be sued separately."

Under the last-quoted statute, Morgan, as an indorser, became equally liable with the makers and might be sued at the same time with the makers, provided that Morgan received "due notice of the nonpayment or protest." But the note sued on contained an express waiver of notice of nonpayment and protest; and the law does not require the holder of a note to give a notice that has been expressly waived. In Walker v. Walker, 7 Ark. 542, this court said, speaking on this subject: "It follows a fortiori, that if by prior arrangements between any of the parties, the necessity of notice has been expressly or impliedly dispensed with as between these parties, no notice need be given, and the want of it is entirely excused; for here the maxim strictly applies. Quilibet potest renunciare juri pro se introducto." (Which in translation is: 'Anyone may, at his pleasure, renounce the benefit of a stipulation or other right introduced entirely in his own favor.')

So the case stands here as though Talley had given Morgan due notice under the section that is now 521 of [206 Ark. 4] Pope's Digest, and that section says that the indorser shall be "equally liable" with the maker. That statute makes Morgan and the Gibsons equally liable on the note in this case, and destroys the Gibsons' contention concerning the weight and degree of liability.

It is undoubtedly true that the maker and indorser of a note are not liable in the same degree and weight. In 8 Am. Jur. 557, it is stated: "At common law, in order to maintain an action ex contractu against a number of defendants, the plaintiff must show a joint liability in all; and since the liabilities of the maker and the indorser of a promissory note are not joint but several, and are dependent upon substantially different conditions and contingencies, the maker and indorser cannot under the common law be joined as defendants in an action on the note, even though the indorsee is also the payee of the instrument. In many jurisdictions, however, by virtue of statutory authorization, a joint action may be maintained against the acceptor, the drawer, and indorsers of a bill of exchange or against the maker and indorsers of a note, as the case may be." To the same effect see 10 C. J. S. 1182.

In Ann. Cas., 1912D (vol. 25), p. 1201, there is a splendid not on the right to maintain a joint action against maker and indorser of a promissory note, and the general rule, stated in American Jurisprudence above, is there set out and discussed with citation of many cases; and Arkansas is listed as one of the States that has a statute permitting the maker and indorser to be jointly sued. Our statute is the statute that is now § 521 of Pope's Digest; and the case recognizing this statute and so declaring the law is Taylor v. Coolidge, 17 Ark. 454.

Appellants cite Lingo v. Swicord, 150 Ark. 384, 234 S.W. 264, where this court held that the maker and the indorser were not jointly liable on the note and where a plea of venue was sustained; and appellant's contention makes it proper that we review the law and the cases leading up to Lingo v. Swicord to see how the error occurred in that decision.

Sections 1398, 1399 and 1400, of Pope's Digest, were respectively §§ 96, 97 and 98 of the Civil Code adopted in 1869, and these sections have come down to us without change and have been in each digest of the statutes since 1874. We refer here to the section numbers as contained in Pope's Digest. There is nothing in § 1398 of Pope's Digest that requires that the defendants shall be "jointly liable" before a nonresident of the county can be sued along with a resident of the county. We find no case where the idea of requiring the defendants to be "jointly liable" was ever mentioned until Wernimont v. State, 101 Ark. 210; 142 S.W 194, Ann. Cas. 1913D, 1156; and in that case this court said: "It is the policy and spirit of our law, enacted into statute by our Legislature, that every defendant shall be sued in the township or county of his residence. To this general principle there are statutory exceptions, chiefly in cases where there is a joint liability against two or more defendants residing in different counties. In such cases it is provided that suits may be brought in the county of the residence of any of the defendants, and service of summons can then be had upon the other defendants in any county, thereby giving jurisdiction over their persons to the court wherein the suit is thus instituted. Kirby's Digest, §§ 6072 and 4558." And again the court said: "Knowing that under our statut...