Hearne v. Keath

• Decision Date: 31 May 1876
• Citation: 63 Mo. 84
• Parties: JOB S. HEARNE, AND JOSEPH W. NICHOLS, Defendants in Error, v. ELEAZOR B. KEATH, AND WM. B. KEATH, Plaintiffs in Error.
• Court: Missouri Supreme Court

63 Mo. 84

JOB S. HEARNE, AND JOSEPH W. NICHOLS, Defendants in Error,

v.ELEAZOR B. KEATH, AND WM. B. KEATH, Plaintiffs in Error.

Supreme Court of Missouri.

May Term, 1876.

Error to Chariton Common Pleas.

J. H. Kinley, for Plaintiffs in Error.

I. No right of action ever enures to a surety against his principal until the security debt is paid. (Powell vs. Smith, 8 Johns. 192; Wetherby vs. Mann, 11 Johns. 518; Arnold vs. Camp, 12 Johns. 409; Sheehy vs. Mandeville, 6 Cr. 264; Elmwood vs. Dudendorf, 4 Barb. § 398; Anslie vs. Wilson, 7 Cow. 662; Randall vs. Rich, 11 Mass. 498; see also Walker vs. McKay, 2 Met. [Ky.] 294; Lee vs. Griffin, 31 Miss. 632; Berthold Adm'r &c., vs. Berthold, 46 Mo. 557.)

II. The fact of an attachment being sued out in aid of the main suit will not help respondents. While an attachment will lie for a debt not yet due, yet there must be an actual subsisting debt, which will become due by the efflux of time. (Drake on Attach. 2 Ed. § 24; Benson vs. Campbell, 5 Porter, 455; Taylor vs. Drane, 13 La. 62; Herrod vs. Burgess, 5 Robinson (La.) 449; Blanchard vs. Groussatt, 1 La. Ann. 96; Read vs. Ware, 2 La. Ann 498; Moore vs. Dickerson, 44 Ala. 485; Dennison vs. Soper, 33 Iowa, 183; Glass vs. Bullen, 6 Barb. 346.)

III. The probable payment by a surety of the debt for his principal is not such a demand as the statute contemplates when it says “an attachment may issue on a demand not yet due,” but a debt that was then owing in presenti et solvendum in futuro. (Kritzer vs. Smith, 21 Mo. 296-300.)

C. Hammond, for Defendants in Error.

Actual payment by the sureties was not necessary to support their action, if they were otherwise damaged. Their right of action was complete when they assumed payment of the Bull note. Nothing remained undone at date of suit except the receipt of the note already signed by Bull.

The most that can be said is that the demand was not due. But our attachment law provides for suit in such cases. (See Kritzer vs. Smith, 21 Mo. 296.)

Defendant's objection that it does not appear that Bull had received the new note before the filing of suit is purely technical. It does not appear from the record that the summons was served before Aug. 1st. Till then defendants were not bound. The filing of the petition cannot in this case be taken as the commencement of the suit.

In Dennison vs. Sloper (33 Iowa, 183,) there was no pretense of any effort by the surety to pay the debt before suit; in fact he was seeking to avoid payment. The original debt was not due and did not become due for several months after suit by the surety vs. principal. Whitney vs. Bird, (11 Iowa, 407) was a suit by the payee in a note commenced before the note was due, but not by attachment.

Payments by sureties are highly favored by law, and have been liberally dealt with by the courts. (Freenold vs. The State Bank, 44 Mo. 336.) In this case the defendants in error have been compelled to pay as sureties for plaintiff in error, a large sum of money. And the principals set up a mere technicality without any claim or pretense of a meritorious defense.

WAGNER, Judge, delivered the opinion of the court.

From the record in this case, it appears that the defendants, Keath & Keath, made their promissory note to L. & C. H. Bul of Quincy, Ills., for the sum of fifteen hundred dollars. This note was due and payable on the first day of July, 1873, and was signed by plaintiffs Hearne & Nichols as sureties. Defendants were in failing circumstances and were also about to remove from the State, and it was evident that the plaintiffs as sureties would have the debt to pay. They accordingly inquired through a third person of L. & C. H. Bull, if they could get further time on the note and prevent a suit being brought thereon. About the 10th of July, 1873, an answer was received to this inquiry inclosing a new note, dated July 1st, 1873, for fifteen hundred dollars, payable fourteen months after date, with ten per cent. interest from date. This note was to be signed by plaintiffs, and also by some solvent person in Adams County, Ills. This letter also stated that the Messrs. Bull demanded in addition, that all back interest on the original note due up to July 1st. 1873, should be paid in full; and that on compliance with these terms, they would deliver to plaintiffs the note signed as security for defendants. On July 17th, 1873, one of the plaintiffs answered this letter, and objected to the time and interest to be paid, as he could not pay the interest at that time, and received a reply on the 23rd of the same month, that no different arrangements could be effected. A previous arrangement had been made with the father of one of the plaintiffs who resided in Quincy, to go on this new note, and after it was found that no further extension of time could be obtained, and that no different arrangements about the payment of the arrearages of interest could be made, plaintiffs signed the note, and on the 26th day of July, inclosed it in a letter with the request that it should be signed by the additional party, the interest paid, and the old note taken up. On the 1st day of August, next thereafter, the interest was finally paid, the new note delivered, and the old note taken up to be delivered to the plaintiffs.

On the 20th day of July, 1873, the present suit was instituted by attachment to recover of the defendants the fifteen hundred dollars, which it was alleged, plaintiffs had paid for them as their sureties. Defendants filed a plea in the nature of a plea in abatement, which being tried before a jury, the issues were found for the plaintiffs. The cause then proceeded and was submitted to the court without the intervention of a jury,...