Minick v. Huff

• Decision Date: 26 June 1894
• Docket Number: 5422
• Citation: 59 N.W. 795,41 Neb. 516
• Parties: ALICE A. MINICK v. EDWARD T. HUFF ET AL
• Court: Nebraska Supreme Court

59 N.W. 795

41 Neb. 516

ALICE A. MINICK v. EDWARD T. HUFF ET AL

No. 5422

Supreme Court of Nebraska

June 26, 1894

ERROR from the district court of Lancaster county. Tried below before HALL, J.

AFFIRMED.

W Henry Smith, for plaintiff in error.

J. E Philpott, contra.

OPINION

RAGAN C.

Alice A. Minick sued Edward T. Huff and Marilla B. Hubbell in the district court of Lancaster county. In her petition she alleged two causes of action, the substance of which are:

First Cause of Action.--That on the second of November, 1888, Mrs. Hubbell was conducting a hotel in Lincoln and owned the furniture therein; that Huff had a chattel mortgage on such furniture; that Huff and Hubbell were receiving about $ 200 per month income from the hotel, and in order that Huff might continue to receive such income Mrs. Minick, at the request of Huff and Hubbell, became surety for Mrs. Hubbell on a note she executed on that date to one Southwick for the sum of $ 500, said Huff and Hubbell promising Mrs. Minick that if she would become surety on said note that they, Huff and Hubbell, would pay said note at maturity without trouble or damage to Mrs. Minick; that Mrs. Minick, relying on the promises of Huff and Hubbell, signed as surety for Mrs. Hubbell her note to Southwick; that said note was not paid at maturity; that Southwick had reduced the same to judgment and she, Mrs. Minick, had been compelled to pay the same, to her damage in the sum of $ 550 and interest.

Second Cause of Action.--That on the 22d day of January, 1889, Mrs. Hubbell was conducting a hotel in Lincoln and owned the furniture therein; that Mr. Huff owned a chattel mortgage on said property; that Huff and Hubbell were in receipt of a monthly income from said hotel of about $ 200, and in order that said Huff might continue to receive said income from said hotel, Huff and Hubbell requested Mrs. Minick to become surety for them on a note made by them on that date to one Southwick for $ 1,500, said Huff and Hubbell promising Mrs. Minick that if she would sign as surety their note to Southwick that they would pay said note at maturity without costs or damage to Mrs. Minick; that relying upon said promises Mrs. Minick signed as surety the note of Huff and Hubbell to Southwick; that said note was not paid at maturity; that she, Mrs. Minick, had been sued on said note and was liable to have judgment rendered against her at any time thereon, and to have her property exposed to execution for the payment of such judgment, to her damage in the sum of $ 1,500.

The answer of Mrs. Hubbell, so far as material here, was that she was the principal debtor in both of the notes made to Southwick; that Mrs. Minick was her surety on both of said notes; that Huff was also a surety on the $ 1,500 note; that at all the times mentioned in plaintiff's petition she was the owner of the hotel furniture, and that Huff held a chattel mortgage thereon; that the $ 500 note had been reduced to judgment and that Mrs. Minick had paid the same; that the $ 1,500 note had also been reduced to judgment against herself as principal and Mrs. Minick and Mr. Huff as sureties, and that Mrs. Minick had not paid said judgment, nor any part thereof.

The answer of Huff, so far as the same is material here, was, in substance, that at all the times mentioned in plaintiff's petition he held a chattel mortgage upon the hotel furniture of Mrs. Hubbell, and a general denial of all the other averments of Mrs. Minick in her first cause of action; that he signed the $ 1,500 note as a co-surety with Mrs. Minick for Mrs. Hubbell; that said $ 1,500 note had been reduced to judgment against Mrs. Hubbell as principal and Mrs. Minick and himself as sureties, and that no part of said judgment had ever been paid; and a general denial of all the other averments of Mrs. Minick in her second cause of action.

The case was tried to a jury and a verdict rendered against Mrs. Hubbell and Mr. Huff in favor of Mrs. Minick on her first cause of action. From the judgment pronounced on this verdict both parties prosecute proceedings in error here.

We will first dispose of the petition in error of Mrs. Minick. The errors alleged by her are:

"1. The court erred in refusing the instructions prayed for on behalf of the plaintiff in the first, second, third, fourth, fifth, sixth, seventh, and eighth sections thereof. (Transcript, pp. 1-13.)" An examination of these instructions discloses the fact that at least one of them ought not to have been given, and as the error alleged is that the court erred in refusing to give all of them, the assignment of error must be overruled.

"2. The court erred in refusing additional instructions by plaintiff as per paragraphs 1 and 2 (Transcript, 18)." What has already been said disposes of this assignment.

"3. The court erred in refusing and admitting evidence for and against the plaintiff as per bill of exceptions, pp. 22, 33, 34, 35, 40, 44, 46, 55, 56, 57, 58, 59, 69, 71, 72, 75, 89, 117, 118, 119, 124, 125, 126, 129, 130, 139, 140, 143, 144, 148, 149, and as per numbered exceptions on the respective pages aforesaid from 1-42." This is not a specific assignment of error. It is equivalent to saying to this court that it will find in the record on the pages mentioned certain rulings of the district court which the plaintiff in error thinks were erroneous. It is no part of the duty of this court to search a record for the purpose of ascertaining if there is any possible error in it. On the other hand, every reasonable presumption will be made in favor of the correctness of the judgment of a district court; and any ruling of that court alleged to be erroneous must be specifically pointed out here in order to have it reviewed.

"4. The court erred in giving paragraph No. 6 of the instructions given to the jury by the court on its own motion." The instruction is as follows: "6. If, from the evidence you find upon the said second cause of action that plaintiff signed the note therein mentioned, with these defendants, for the sum of $ 1,500; and if you find from the evidence that said note was sued and judgment obtained thereon against the defendant Hubbell, as principal, and the plaintiff and the defendant Huff as sureties; and if you find from the evidence that defendants Huff and Hubbell undertook and faithfully promised and guarantied the plaintiff herein, in consideration of her signing said $ 1,500 note, that said defendants, or one of them, would pay or cause to be paid said note without trouble, delay, cost, or damage to the plaintiff, then you are instructed that plaintiff would be entitled to recover herein from defendants herein the amount of said judgment, if any, with interest thereon and costs of suit, as shown by the evidence; provided you further find from the evidence that the plaintiff herein has paid or secured the payment of said $ 1,500 note or the judgment, if any, obtained thereon." The evidence is undisputed that the $ 1,500 note had been reduced to judgment against Mrs. Hubbell as principal and Huff and Mrs. Minick as sureties, and that Mrs. Minick had not paid said judgment, nor any part thereof. The court, then, did not err in giving this instruction. The theory of counsel for the plaintiff in error is, that since the evidence showed judgment had been rendered against Mrs. Minick for the amount of $ 1,500, and that such judgment had become a lien upon her property, that she was entitled to recover the amount of the judgment, interest, and costs before she paid it. This is not the law. Before a surety can recover of his principal, because of his suretyship, he must first have paid the debt of his principal, or some part thereof. (Stearns v. Irwin, 62 Ind. 558; In re Estate of Hill, 67 Cal. 238, 7 P. 664.) If Mrs. Hubbell was the principal on the $ 1,500 note and Huff and Minick were co-sureties, then neither one of them would have a right of action against Mrs. Hubbell, by reason of their suretyship, until they had paid the debt for which they were surety, or some part thereof. If Hubbell and Huff were both principals and Mrs. Minick was their surety, then she would have no cause of action against either of them until she had paid the debt, or some part thereof. The argument of counsel for Mrs. Minick is that the promise made...