Graham v. Ringo

• Decision Date: 30 April 1878
• Parties: GRAHAM, Appellant, v. RINGO.
• Court: Missouri Supreme Court

67 Mo. 324

GRAHAM, Appellant,

v.RINGO.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Cape Girardeau Court of Common Pleas.--HON. H. G. WILSON, Judge.

Lewis Brown for appellant.

The trial court had jurisdiction in this cause against the maker of the note. 2 Wag. Stat., p. 1005, § 1; January v. Rice, 33 Mo. 409; Huxley v. Harrold, 62 Mo. 523. Where there is a misjoinder of causes of action, only those injured have the right to complain. Dickerson v. Chrisman, 28 Mo. 138. The proper way of correcting such irregularity is by motion to compel an election, and this must be done by the adverse party, and the objection is waived if the petition is not demurred to or moved against, and if the objection is substantial it would be cured by verdict Mooney v. Kennett, 19 Mo. 551; Stevenson v. Judy, 49 Mo. 227; State v. Oddle, 42 Mo 210; Farmers' Bank v. Bayliss, 41 Mo. 274; House v. Lowell, 45 Mo. 381; Pickering v. Telegraph Co., 47 Mo. 487; Frazer v. Roberts, 32 Mo. 457; Richardson v. Farmer, 36 Mo. 35; Hay v. Short, 49 Mo. 139; 2 Wag. Stat., p. 1036, § 19, sub § 1, 5, 8, 9, 14, § 23. A judgment cannot be arrested as to some of the defendants and a final judgment entered as to others. Rush v. Rush, 19 Mo. 441; Randalls v. Wilson, 24 Mo. 76; Covenant Ins. Co. v. Clover, 36 Mo. 392.

Houck & Ranney for respondent.

Judgment can be rendered against a non-resident only when suit is brought in the county where one of the parties lives, provided, however, that party has been properly joined. January v. Rice, 33 Mo. 409; Kerrin v. Roberson, 49 Mo. 252; Capital City Bank v. Knox, 47 Mo. 333. The maker was improperly joined with the guarantor. Farmers' Bank v. Bayliss, 41 Mo. 274; Central Savings Bank v. Shine, 48 Mo. 464.

HOUGH, J.

This was an action instituted in the Cape Girardeau court of common pleas, against the defendant, Ringo, as maker, and the defendant, Hector, as guarantor, of a certain promissory note. Hector resided in Cape Girardeau county, but the defendant, Ringo, resided, and was served, in Scott county. Both made default, and, on the 4th day of February, 1876, final judgment was rendered against both. On the 7th day of February, 1876, the defendant Ringo, appeared specially, and moved to set aside the judgment rendered against him, for the reason that he could not bejointly sued with the defendant, Hector, and being a resident of Scott county, the court of common pleas of Cape Girardeau county acquired no jurisdiction of his person, by the service of process on him in Scott county. This motion was sustained, and the plaintiff, thereupon, took a non-suit with leave to move to set the same aside, and has brought the case here by appeal.

1. THE MAKER AND THE GUARANTOR.

A guarantor is neither an indorser nor a surety. 2 Pars. Notes & Bills, 117. His undertaking is his own separate and independent contract; it is not a joint engagement with his principal, and he cannot be sued with him. Central Savings Bank v. Shine, 48 Mo. 463; McMillan v. Bull's Head Bank, 32 Ind. 11; Allen v. Fosgate, 11 How. Pr. Rep. 218. It was improper, therefore, to render a judgment against both defendants.

2. JURISDICTION: misjoinder of parties: practice.

Nor could any judgment have been rendered, in this action against Ringo alone. As he was not jointly liable with the defendant, Hector, and did not reside in the county in which the action was brought, and was not served with process in said county, the court acquired no jurisdiction over his person. Our statute provides that when there are several defendants, residing in different counties, suit may be brought in either of said counties, and in such case, a separate summons shall be issued to each county for all the defendants residing therein. But this statute evidently contemplates a case in which there is a joint liability on the part of all the defendants. It was not necessary for the defendant, Ringo, to appear and plead to the...