Jackson v. Murray

• Citation: 14 S.W. 235
• Parties: JACKSON v. MURRAY <I>et al.</I>
• Decision Date: 17 June 1890
• Court: Supreme Court of Texas

14 S.W. 235

JACKSON v. MURRAY et al.

Supreme Court of Texas.

June 17, 1890.

Commissioners' decision. Appeal from district court, Coleman county.

This suit was brought by W. F. Murray and J. F. Taylor against C. C. Fountain and J. J. Jackson. The petition shows that plaintiffs and J. J. Jackson were sureties on two promissory notes for C. C. Fountain, the principal; that plaintiffs paid off and discharged the notes after their maturity. It was stipulated in the notes that 10 per cent. additional as attorneys' fees should be paid in case suit was brought to collect the same; that is, 10 per cent. on the amount due on the notes at the time of suit. Plaintiffs prayed for judgment against Jackson for one-third of the debt and attorneys' fees as his part of the debt, paid by them, and for themselves, and for the benefit of Jackson, their co-surety, for the full amount of the debt. It was alleged that C. C. Fountain was insolvent. Defendant Jackson demurred and excepted specially to the petition "for the reason that it appeared from the same that J. J. Jackson was only a surety on the notes, and that they had been fully paid and discharged, and he was therefore no longer liable on the same," and because plaintiff sought to recover of the defendant Fountain the full amount of the notes, and against Jackson one-third of the same; and that their seeking to recover the full amount of Fountain operated a release of Jackson. The court overruled the general demurrer and exceptions, and appellant assigns the ruling as error. The court rendered judgment for plaintiffs against Fountain for the full amount of the debt sued for. Appellant, Jackson, contends that the judgment should have been rendered, as prayed for, in his favor as against Fountain, as well as in favor of plaintiffs. The court rendered judgment against defendant Jackson for one-third of the debt as prayed for. Appellant's sixth assignment of error is that "the court erred in overruling his motion for a new trial and in arrest of judgment, for the five reasons set out in the motion, as appears from bill of exceptions No. 5." Upon application of plaintiffs the court entered a remittitur for the whole judgment as rendered against Fountain, allowing the judgment to stand as rendered against defendant Jackson. Jackson saved an exception to this ruling, and assigns the same as error, because such ruling cuts defendant out of any recourse on Fountain, or any right of action against Fountain, whereby plaintiffs became liable to Jackson for his one-third of the judgment.

H. C. Randolph, for appellant.

COLLARD, J., (after stating the facts as above.)

The ground upon which a surety is entitled to contribution is that he has paid the debt for which he and his...