Lewis v. Browning

• Decision Date: 23 March 1928
• Citation: 4 S.W.2d 734,223 Ky. 771
• Parties: LEWIS v. BROWNING.
• Court: Kentucky Court of Appeals

4 S.W.2d 734

223 Ky. 771

LEWIS v. BROWNING.

Court of Appeals of Kentucky

March 23, 1928

Appeal from Circuit Court, Lewis County.

Action by W. L. Browning against J. J. Lewis, Jr., and others. Judgment for plaintiff, and defendant named appeals. Reversed, with directions.

Lee &amp Snyder, of Harlan, for appellant.

Chas B. Spicer, of Harlan, for appellee.

THOMAS J.

On January 17, 1925, the appellant, J. J. Lewis, Jr. (to whom we shall hereafter refer as defendant), and W. H. Browning, who was also a defendant below, executed to J. L. Huff, another defendant below, their joint promissory note, whereby they agreed to pay Huff 60 days thereafter the sum of $1,000, with interest from date. Some time thereafter (but whether before or after the maturity of the note is disputed), the payee therein, J. L. Huff, by written indorsement transferred the note to appellee and plaintiff below, W. L. Browning, the brother of one of its joint makers, and on that day J. L Huff credited the note with $500, and entered thereon this indorsement: "$500.00 paid by W. H. Browning, his part in full." Later this action was filed in the Harlan circuit court by plaintiff against defendant, Lewis, and his co-maker, W. H. Browning, to recover the balance due on the note, and in the petition it was alleged as grounds of attachment against defendant, Lewis, that (a) he had sold conveyed, or otherwise disposed of his property, etc., with the fraudulent intent to cheat, hinder, or delay his creditors, and (b) that he had no property in this state subject to execution or not enough to satisfy plaintiff's demand, and its collection would be endangered by delay in obtaining judgment or a return of no property found.

Ground (a) is contained in subdivision 7 of subsection 1 of section 194 of the Civil Code of Practice, and ground (b) is contained in subsection 2 of the same section of the Code. A motion was made by defendant, Lewis, to discharge the attachment upon the face of the papers, which was overruled, with exceptions. He then filed answer, the first paragraph of which was a denial, and the second paragraph averred that plaintiff procured the assignment of the note to himself after it became due, and after the indorsement attempting to release defendant's comaker on the note, and that it was without consideration, and averred the facts showing the want of consideration. A reply made the issues and the case was tried on the first day of the regular May, 1927, term of the court, which convened on May 2 of that year. Upon the calling of the case for trial, defendant was absent, and his attorney asked for a postponement of the hearing until a future day because of the absence of his client, who lived a considerable distance from the courthouse. The motion for that purpose was overruled and the cause was heard in defendant's absence upon the testimony of plaintiff and his witnesses only, which resulted in a verdict and judgment against defendant for the balance of the note. On the next day, which was the second day of that term, defendant appeared with his witnesses, and moved that the judgment be set aside, and also filed grounds for a new trial. The court overruled the latter motion and likewise overruled defendant's motion to set aside what, in effect, was the default judgment against him for the reasons stated in his affidavit therefor, and, complaining of such rulings of the court, defendant prosecutes this appeal.

In the affidavit filed by him on the next day following the trial, and in which he explained his absence on the previous day, and because of which he sought to have the judgment set aside, defendant stated that he construed the letter of his counsel notifying him of the time of the trial to mean that it was set for a hearing on the second day of the May term, and not that it was set for trial on the 2d day of May; that he had theretofore had considerable business with the circuit court of his county; and that he had observed that the day upon which a case was set for trial was usually a designated day of the term, and not a day of the month. Acting upon that bona fide belief, he did not appear in court on the day previous (which, as we have seen, was the first day of the May term, but the 2d day of that month), and because thereof he asked that the judgment be set aside, and either set for a later day in the term or continued until the next term. One of the grounds for a new trial in the motion made therefor was, error of the court in overruling the motion made by defendant's counsel for a peremptory instruction in his favor, upon the ground that the attempted release of W. H. Browning from further liability on the note in consideration of his paying $500 thereon operated to release defendant, Lewis, also, and upon this appeal on the merits of the case such rulings of the court are complained of as error.

We will consider them in the reverse order named. It may be conceded that a valid release of one joint obligor in a writing without the consent of the other or others will likewise release them. See Fox v. Hudson's Executor, 150 Ky. 115, 150 S.W. 49, Ann. Cas. 1914A, 832, and cases therein referred to. But, for that principle to apply, the release must be a valid and binding one so as to destroy the right of the releaser to subsequently proceed against the one released for any relief growing out of the execution of the writing. Unless the release is of such binding effect, it will not operate to bar other actions on the writing either against the one attempted to be released or any of his co-obligors. The payment on the note by W. M. Browning of the $500 in consideration of which his attempted release on the note was made did not have that effect, unless it was made before the note was due, because the entire demand against him was a liquidated one, and it is well settled that the acceptance of only a part of a past-due and liquidated demand will not operate as a satisfaction of the whole of it. 1 R. C. L. 184 § 15; 1...