Stoops v. Wittler

• Decision Date: 07 March 1876
• Citation: 1 Mo.App. 420
• Parties: ANN STOOPS, Respondent, v. GOTTLIEB WITTLER, Administrator of F. W. WITTLER, Appellant.
• Court: Missouri Court of Appeals

1 Mo.App. 420

ANN STOOPS, Respondent,

v.GOTTLIEB WITTLER, Administrator of F. W. WITTLER, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 7, 1876.

In the absence of fraud or collusion, payment, or a clerical error in the entry, a judgment against the principal, where the surety has been a party defendant and has filed an answer, will be conclusive against such surety, though the suit was dismissed as to him before the trial.

APPEAL from St. Louis Circuit Court.

Affirmed.

Gottschalk, for appellant, cited: Lartique v. Baldwin, 5 Marlon, 193; Beall v. Beck, 3 Har. & M. (Md.) 242; McKeller v. Powell, 4 Hawks (N. C.), 34; Mooris v. Lucas, 8 Blackf. (Ind.) 9; King v. Norman, 4 C. B. 884; Hermann on Estop. 49, 51; 1 Wag. Stat. 269, sec. 1; Freem. on Judg., sec. 189.

M. Kinealy and Daniel Dillon, for respondent, cited: Roger v. Williams, 4 McLean, 577; 1 Greenl. on Ev., secs. 522, 523; State, to use, v. Coste et al., 36 Mo. 437; State of Ohio, etc., v. Colerick, 3 Ham. (Ohio) 487; 1 Pars. on Notes & Bills, 207, and notes.

BAKEWELL, J., delivered the opinion of the court.

Plaintiff proved up, in the Probate Court, a demand against the estate of Frederick W. Wittler, deceased, founded on a promissory note by one Henry Wittler, payable to plaintiff, and on the back of which F. W. Wittler had written his name as surety. On trial anew in the Circuit Court, defendant admitted that deceased had written his name on the note as surety for the maker, and the note was read in evidence. Defendant then offered to show, in defense of the claim, that there was a total failure of consideration for said note as between plaintiff, the payee, and Henry Wittler, the maker, for whom deceased, Frederick W. Wittler, defendant's intestate, was surety. To the introduction of this evidence plaintiff objected, on the ground that the facts relied upon as a defense by the surety had been fully adjudicated and determined in a suit between the plaintiff herein and Henry Wittler, the maker of the note in question, and that judgment was obtained therein against said Henry Wittler, which judgment is still in force and unsatisfied; and it appearing, by an inspection of the record in said suit, that the fact is as stated, the record of that suit was offered in evidence, whereby it further appeared that deceased was originally a party defendant, and, together with Henry Wittler, filed a joint answer thereto; and the jury was instructed by the court that, on the evidence and admissions, plaintiff is entitled to recover.

There was a verdict and judgment for plaintiff, and, all exceptions having been saved, and a motion for a new trial overruled, the case is brought to this court by appeal.

In Greerside v. Benson, 3 Atk. 252, Lord Hardwicke held a judgment against the principal debtor conclusive in an action against the guarantor. But the rule is not established in this country, and the decisions are conflicting.

It has been repeatedly held, in actions on bonds against the sureties of executors and administrators, that a judgment against the estate of the testator or intestate is conclusive on the sureties; but in those cases the form of the bond is such that they are not in point.

The question is elaborately discussed in Douglas v. Howland, reported in 24 Wend. 58. The Superior Court held a judgment against the principal conclusive against the surety, and, on appeal, this decision was reversed. Judge Cowen delivered the opinion of the court, and reasons, at great length and with force, in favor of the rule that, in a suit against the surety, the judgment against the principal should not be conclusive; and he cites two cases, one in Maryland and one in North Carolina, in support of his view. His attention does not appear to have been called to Slee v. Bloom, 20 Johns. 669, decided by the Court of Errors in 1822, with which his ruling does not seem to be in accord. The opinion in this case is by Ch. J. Spencer, the weight of whose name is very great.

In Berger v. Williams, 4 McLean, cases bearing upon this question are reviewed, and the opinion of Judge Cowen, cited above, is particularly examined.

The case turns upon this point, and the Circuit Court of the United States, for the seventh circuit, decides that the surety is concluded by a judgment against his principal. In our own State there has been no authoritative decision on this point. In State, to use, v. Coste, 36 Mo., it was decided that a judgment in favor of the principal is a complete discharge to the surety; but that a judgment against the principal would conclude the surety is quite another proposition, and one that must rest upon grounds entirely distinct from those which are manifestly sufficient reasons for the former rule.

Stewart v. Thomas, 45 Mo., is a case which essentially differs from the one under...