Hibler v. Shipp
| Decision Date | 26 June 1879 |
| Citation | 78 Ky. 64 |
| Parties | Hibler v. Shipp. Hildreth v. Same. |
| Court | Kentucky Court of Appeals |
APPEAL FROM BOURBON CIRCUIT COURT.
PRALL & DICKSON AND A. DUVALL FOR APPELLANT.
G. C. LOCKHART AND W. LINDSAY FOR APPELLEE.
CHIEF JUSTICE PRYOR DELIVERED THE OPINION OF THE COURT.
The appellant Hildreth being the surety of Hibler on a note for about six thousand dollars, was sued by the payee Shipp, and judgment obtained against him in the Bourbon Circuit Court, at its April term, in the year 1878. The case is brought to this Court for revision by the surety, and the following errors assigned:
1st. The petition fails to present a cause of action.
2d. A former adjudication of the matter in controversy.
3d. Bad faith on the part of the payee towards the surety, amounting to fraud.
The petition as amended presented a cause of action. It is alleged "that by a writing dated the 24th of December, 1875, which defendants Hibler and Hildreth signed and delivered to the plaintiff, made part of the petition and filed, promised to pay sixty-one hundred and sixty-nine dollars and thirty-seven cents to the plaintiff," &c.
In adhering to the rules of grammar, the verb promised stands without a nominative; still the note itself is made a part of the petition, and constitutes the basis of the action; and if not made part of the pleading, it would be technical to hold that the word promised had no reference to the defendants, when it is expressly alleged that they signed the writing upon which the recovery is sought.
A former action had been instituted by the appellee against these parties on the same note, and in that proceeding the following order was made: "Ordered, that this cause be dismissed at defendant's cost, and leave is given the plaintiff to withdraw the note sued on by leaving a copy in the papers." This order is claimed by the appellant to be a final judgment, and is pleaded in bar to the present action. It is alleged that the action was dismissed in pursuance of an agreement between the plaintiff and the principal obligor, without the knowledge or consent of the surety (appellant), and that under the agreement the entire subject-matter of the action was disposed of.
The legal effect of an order dismissed agreed will prevent a recovery on the same cause of action between the same parties, and must be regarded as an adjustment of the controversy. Such was the opinion of this Court in the case of the Bank of the Commonwealth v. Hopkins, 2 Dana. There is nothing found in such an order or judgment that would lead the mind to any other conclusion than that the parties, by an agreement, had adjusted the differences between them. In this case, however, it is plain that the order of dismissal was not regarded as a judgment on the merits, or intended as an abandonment by the appellee of his right to prosecute another action on the same obligation. No defense had been interposed by the obligor, and the leave given the plaintiff to withdraw the note indicates clearly the purpose of the appellee to hold it as the evidence of the indebtedness by the appellant, with the right to coerce payment as if no such action had been instituted. This question is directly decided in the case of Harris v. Tiffany & Co., 8 B. Monroe, page 226. The facts of this case are, that the attorney of the plaintiff undertook and did dismiss the action on the promise of the principal obligor to pay the interest; and while, if the order could be construed as a judgment on the merits, such evidence would be inadmissible to explain it, it sustains the wisdom of the rule determining the legal effect of such entries by the clerk. An order like that can be regarded only as a dismissal of the action without prejudice. The principal defense in the case is, that, prior to the first action instituted by the appellee, the appellant notified him verbally to bring that action, and the suit was brought and afterwards dismissed without the consent or knowledge of the surety; that the fact of bringing the action prevented the appellant from giving the legal notice, and the false promise on the part of the appellee, and his conduct in dismissing the action, was a fraud upon the rights of the surety, and exonerated him from all liability. The 11th ...
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