State v. Ellison

• Citation: 196 S.W. 748
• Decision Date: 01 June 1917
• Docket Number: No. 19657.,19657.
• Parties: STATE ex rel. SINGLETON v. ELLISON et al., Judges.
• Court: United States State Supreme Court of Missouri

196 S.W. 748

STATE ex rel. SINGLETON v. ELLISON et al., Judges.

No. 19657.

Supreme Court of Missouri. In Banc.

June 1, 1917.

Motion for Rehearing Denied June 30, 1917.

Certiorari by the State, on the relation of Eunisa Singleton, administrator of John M. Singleton, deceased, against James Ellison and others, Judges of Kansas City Court of Appeals. Writ quashed.

For former opinion, see 183 S. W. 1077.

Numa F. Heitman, of Kansas City, for relatrix. Erasmus C. Hall, of Kansas City, for respondents.

BLAIR, J.

Certiorari. Relatrix contends the Court of Appeals, in Singleton, Adm'x, v. Shepherd, 183 S. W. 1077, has brought its opinion into conflict with decisions of this court. The Court of Appeals stated the facts of that case thus:

"Plaintiff and defendant were cosureties for one Robertson on his forthcoming bond in an attachment suit against him. Judgment was rendered in December, 1898, against all three for $2,321.48, and it bore 6 per cent. interest. Robertson was insolvent. Afterwards, in June, 1900, defendant paid the judgment plaintiff $500 for a release from the judgment `and from all liability therefor and obligation thereunder, without, however, releasing his co-obligors.' About seven years afterwards this plaintiff, with knowledge of defendant's payment and release, paid the judgment plaintiff in the attachment suit $1,500 `in satisfaction of the judgment.' This payment, at that date, was less than the amount, with interest, due from plaintiff as his portion of the judgment. Plaintiff's theory is that, including both his and defendant's payments, the judgment was settled for $2,000, of which he and defendant each owed one-half, and that since he paid $500 more, and defendant paid $500 less, than one-half, the latter is liable to him in contribution. Defendant's theory is that as between him and plaintiff, as cosureties. each owed one-half of the judgment, and that since the payment made by plaintiff was less than his portion of `the original demand.' he had no right of action in contribution under the statute (section 11277, R. S. 1909), which reads: `When there are two or more sureties in any such bond, bill or note, and any of them shall pay, in money or property, more than his due portion of the original demand, such surety may recover such excess, as herein provided for a surety against the principal debtor.'"

The real holding of the court in the opinion upon these facts was and is that Singleton paid less than his proportionate part or "due portion" of the original demand, and that such payment, in the circumstances, gave him no right to enforce contribution by Shepherd; that such right could have come into existence only in case Singleton had paid more than one-half of the whole judgment against him and Shepherd. The decisions of this court with which this holding is said to conflict are: Schneider v. Maney, 242 Mo. 36, 145 S. W. 823; Van Petten v. Richardson, 68 Mo. loc. cit. 380, 382; Jeffries v. Ferguson, 87 Mo. 244; Baker v. Hunt, 88 Mo. 405; Dodd v. Winn, 27 Mo. 501; Vaughn v. Haden, 37 Mo. 178; Burrus v. Cook, 215 Mo. 496, 114 S. W. 1065; Hearne v. Keath, 63 Mo. 84, 89; McAllister v. Dennin, 27 Mo. 42; State ex rel. v. Atherton, 40 Mo. 210; State ex rel. v. Matson, 44 Mo. 308; Ritter v. Company, 68 Mo. loc. cit. 462; Grant v. Holmes, 75 Mo. loc. cit. 110; Hill v. Alexander, 77 Mo. 296; Lower v. Bank, 78 Mo. 69; Montgomery County v. Auchley, 103 Mo. 501, 15 S. W. 626; Harrison v. Phillips, 46 Mo. 520; Brown v. Pearson, 8 Mo. 160; Benne v. Schnecko, 100 Mo. 257, 13 S. W. 82; Berthold v. Berthold, 46 Mo. 557; Snyder v. Kirtley, 35 Mo. 423; Yore v. Yore, 240 Mo. 451, 144 S. W. 847; Chilton v. Chapman, 13 Mo. 470. Further, numerous cases from the Courts of Appeals and from courts of other states, and text-books, encyclopædias, etc., are cited. The question of conflict with these does not concern us in this proceeding.

Schneider v. Maney, supra, was cited by the Court of Appeals and correctly distinguished. It discusses the right of a creditor to compromise with one surety and hold others for the full amount of the balance. The opinion also cites Burrus v. Cook, supra. That case dealt with the limitation applicable to an action by one surety, who had discharged the whole debt, in a suit against a cosurety for contribution. It is said in the opinion that a surety may not "speculate off his principal nor his cosurety and can recover no more than he has been compelled to pay for him, and that if a surety `adjust the note at less than its face, he can recover no more than he pays,'" This last also involves the idea of a discharge of the whole obligation, and has reference rather to recovery from the principal than from a cosurety. The decision is not in conflict with this. In Van Petten v. Richardson, supra (followed in Jeffries v. Ferguson, supra), the action was brought by a surety (who had paid certain costs) against one of his six cosureties, one of whom was insolvent. Plaintiff asked judgment for one-sixth the amount he had paid. It was held that plaintiff could recover at law, the liability being apportioned among the solvent sureties. In the course of the opinion it was said that an action could be "maintained by one cosurety * * * for any excess of the common indebtedness which he may have discharged over his proportionate share," and that while courts of law formerly limited this to a recovery of an aliquot part, the equity rule had been adopted by our courts of law. It was also said that the doctrine of contribution arises out of the principle "that all who are in equali jure must bear the burden equally, and that this is but in conformity to the maxim that `equality is equity.'" In that case the question presented in Singleton v. Shepherd was neither presented nor discussed. Nor could it be. Whether the broad principle forming the basis of the doctrine of contribution goes so far as to give a right of contribution in a case such as the Court of Appeals had before it was not and could not have been decided. In Hearne v. Keath, supra, it was held that a "principal does not become a debtor of the surety until the latter pays the debt, for which he is liable as security." In Baker v. Hunt, supra, wherein McAllister v. Dennin, supra, is epitomized, the right of the creditor to compound with one surety and hold the rest and the preservation, in such case, of the right of contribution under the statute is recognized. The Court of Appeals, in its opinion, cites and correctly stated the doctrine of Routon v. Lacy, 17 Mo. 399, decided before the statute (section 2777, R. S. 1909) was passed. In Dodd v. Winn, supra, it was said that the creditor by discharging one surety cannot impose on another a greater liability than he ought to bear; that one surety cannot be required by another to pay more than his due proportion of the debt; and that what is such due proportion varies with the circumstances. The rule as to cases involving some insolvent sureties...