Quinn v. Alexander

• Decision Date: 02 May 1921
• Docket Number: 21389
• Citation: 125 Miss. 690,88 So. 170
• Court: Mississippi Supreme Court
• Parties: QUINN v. ALEXANDER et al

88 So. 170

125 Miss. 690

QUINN v. ALEXANDER et al

No. 21389

Supreme Court of Mississippi

May 2, 1921

1. SUBROGATION. A surety paying a judgment has all the equities of the judgment creditor.

A surety paying a judgment against himself, his principal, and another, has, under section 3735. Code of 1906 Hemingway's Code, section 2911, all of the liens and equities therein that the judgment creditor had both against the surety's principal and the other person against whom the judgment was rendered.

2. BILLS AND NOTES. Indorser's name need not be noted as indorser on execution of judgment on note against maker and indorser who has also guaranteed, payment.

Where a judgment is rendered on a promissory note against the maker and an indorser who has also guaranteed the payment of the note, the indorser is not within the requirement of section 4015, Code of 1906, Hemingway's Code, section 2577, that "The clerk or justice of the peace shall indorse on all executions issued on judgments rendered in suits on promissory notes and bills of exchange the names of the makers, drawers, acceptors, and indorsers, so as to designate the order in which they are liable," etc.

HON. G E. WILLIAMS, Chancellor.

APPEAL from chancery court of Bolivar county, HON. G. E. WILLIAMS Chancellor.

Suit by Mrs. Vallie B. Quinn against D. C. Alexander and others to enjoin the sale of property under execution. A temporary injunction was dissolved, and complainant appeals. Affirmed and remanded.

Affirmed and remanded.

Somerville & Somerville, for appellant.

It is the contention of opposing counsel that the sheriff should not consider the rights of an endorser unless the clerk had first endorsed thereon the fact that a certain person was endorser and counsel refers to the word "such" before the word "execution" in section 4015. Our reading of this section is that the sheriff in making the money out of the property of the maker before the endorser is just as much bound as is the clerk. The section of the code simply says that "In suits on promissory notes" the clerk shall make a certain endorsement. It then says that the sheriff, or other officer, shall make the money on such executions out of the property of the maker, etc. If the sheriff has an execution based upon a judgment in a suit on a promissory note, as in this case we see existed, and the sheriff has already been enjoined by this endorser, and the sheriff knows, and admits, that he knows all of the facts and parties in interest; and if the attorneys for the endorser stand there pointing out to him the property of the maker and request him to levy upon it; then we think clearly the sheriff is bound by the section of the code, bound more by his own knowledge and the circumstances of the case than he would be by the mere endorsement on the execution. Our reason for saying so is that in the present instance we have shown so plainly to the court that the sheriff, Tonkel and Alexander were merely trying to pervert the decision of the courts, and pervert the law, and they all knew it.

Opposing counsel then state that appellee, Tonkle, did not pay the money to the sheriff acting under sections 4015 and 4016, but that he acted under section 3735 which is broader in its scope. We call the particular attention of the court to this part of the brief of our adversaries just filed. Referring to section 3735 and its broad scope, they say that the "Surety not being limited to the benefits of its provisions as against parties who are liable only to him as the rights of endorsers are limited by section 4016."

We cannot see this otherwise than an admission that if sections 4015 and 4016, have any application our entire position in this suit is well taken. We read the above sections to cover all suits involving promissory notes and can see nothing in the said sections to keep them from covering all suits on promissory notes, and this certainly is such a suit.

Counsel then re-argue the fact that Mrs. Quinn had an adequate remedy at law under section 3735. Counsel may think for the moment that this remedy was adequate, but we cannot see it that way. In the first place if Mrs. Quinn was entirely relieved from liability by the payment of the money by Tonkel she should take advantage of this situation while it existed. She was vigilant in this as in all other respects. Had she paid the money over she could not then have possibly been in as good situation as if the money had been paid by the surety for the maker. In other words if her liability had ended she could not afford to pay out anything. In the next place, as argued in our recent brief, if sections 4015 and 4016 apply and if the law is to be enforced then the execution being enjoined as it was, was the only remedy which could make the supposed officers of the law carry out the law.

Roberts & Hallam, for appellee.

Replying to the brief for appellant in response to the memorandum by the court, we have only to say: First: There is not in this record any showing that relief was thought of or asked under the provisions of section 3737 of the Code of 1906. And counsel for appellant very frankly concede this when they say "There are, therefore, no allegations of the bill of complaint justifying any recovery under section 3737." The letters at pages 55 and 58 of the record to which counsel make reference bear date respectively, April 13, 1917, and April 24, 1917--six months before the execution herein enjoined issued. The date of this execution, as alleged in the bill was October 10, 1917. The letter of April 13, 1917, in which reference is made to an affidavit, therefore, did not refer to the present writ, and it fails to disclose the nature or contents of such affidavit or the purpose for which it was made or delivered.

Nor is there any reference in the bill to sections 4015 or 4016, the counsel say the entire bill is predicated upon those sections. They attempt to relieve themselves from this omission to refer to the sections by contending that the bill sets up the facts and that under the facts the law applicable should be applied. But the bill does not recite any facts such as are referred to in these sections or which bring the case within them. The writ of execution in question bore no endorsement of the clerk of the names of the makers and endorsers so as to designate the order in which the parties were liable. The clerk could not have made this endorsement without usurping the functions of the court. The judgment did not so designate the order of liability. Hence the sheriff had no option in the matter but to levy on the property of both defendants in the execution, or either defendant, if property to levy on could be found. And...