Walters v. Wood

• Decision Date: 12 June 1883
• Parties: WALTERS v. WOOD. CRABTREE v. SAME
• Court: Iowa Supreme Court

16 N.W. 116

61 Iowa 290

WALTERS v. WOOD.

CRABTREE v. SAME

Supreme Court of Iowa, Des Moines

June 12, 1883

Appeal from Marshall District Court.

THE defendant, Wood, one Jackson, and the plaintiffs, executed a promissory note to D. N. Pickering, and the plaintiffs claim that the defendant was the principal debtor and they his sureties, and that they have been compelled to pay Pickering a portion of the amount due on the note; and this action was brought to recover the amount so paid. The defendant pleaded a prior adjudication. Trial to the court, and judgment for the plaintiffs. The defendant appeals.

AFFIRMED.

Brown & Carney, for appellant.

Binford & Snelling and O. L. Binford, for appellees.

OPINION

SEEVERS, J.

The appellant moves the court to strike the additional abstract from the files. We do not think the motion should be sustained, but deem it unnecessary to state the reason for this holding, because, for the purposes of the case, such abstract will be disregarded.

The note to Pickering was signed by the makers in the following order: Wood, Jackson, Crabtree, Walters. The note on its face failed to indicate who were principals and who sureties. Pickering brought suit against all the makers, we presume but the record shows that he only recovered judgment against the plaintiffs and defendant. If Jackson was a party to the action, for some reason unknown to us, Pickering failed to obtained judgment against him.

In that action the plaintiffs pleaded "that they signed" the note "as security for N.W. Wood," and the latter pleaded that he "was surety only, and not liable as principal on the note." To such pleadings no reply was filed by Pickering.

The court found that the plaintiffs and defendant were all sureties, and judgment was rendered against them as such. The court calendar shows that the judgment was entered "under the rule by agreement. Clerk assess." It is this judgment which is pleaded and relied on as a prior adjudication, and counsel for the appellant conceded that if this is not a valid defense, none exists.

The material question in the case, in our judgment, is whether any issue was joined between the defendants in the Pickering action, which could be tried and determined. As between Pickering and the defendants in that action, it may be conceded that the court could, and did, properly determine that both the plaintiff and defendants were sureties.

In actions at law, issue cannot be formed and tried between defendants therein, unless there is some statute which authorizes...