Weitz v. Wolfe

• Decision Date: 14 January 1890
• Citation: 44 N.W. 485,28 Neb. 500
• Parties: T. T. WEITZ v. C. C. WOLFE
• Court: Nebraska Supreme Court

44 N.W. 485

28 Neb. 500

T. T. WEITZ v. C. C. WOLFE

Supreme Court of Nebraska

January 14, 1890

ERROR to the district court for Johnson county. Tried below before APPELGET, J.

AFFIRMED.

Clarence K. Chamberlain, for plaintiff in error.

S. P Davidson, contra.

OPINION

NORVAL, J.

This action was brought in the county court of Johnson county to recover the amount due on a promissory note for $ 309, made by one R. P. Jennings, and payable to the order of T. T. Weitz. Before maturity, the payee sold and transferred said note to the defendant in error Wolfe, making the following indorsement of the same: "I guarantee the payment of the within note, waiving demand and notice of protest. T. T. Weitz." Jennings and Weitz were made defendants. The former did not appear, although served. The latter answered alleging a misjoinder of parties and of causes of action. A reply was filed, trial had, and judgment rendered against both defendants. Weitz alone appealed to the district court, where the defendant in error filed his petition, which was substantially the same as the one filed in the lower court, except that in the prayer judgment was asked against Weitz alone. Plaintiff in error moved to strike the petition from the files, because it stated a different cause of action from that set up in the county court. This motion was overruled, and the defendant answered, alleging the misjoinder of parties and causes of action. A reply was filed, the cause was tried to the court, and judgment was rendered against the plaintiff in error for the amount of the note. A motion for a new trial was overruled, and Weitz brings the case here by petition in error.

It is contended that Weitz was simply a guarantor, and is not liable in the same action with Jennings, the maker of the note, and the case of Mowery v. Mast, 9 Neb. 445, 4 N.W. 69, is cited to support the position. That was a case where one Calvert executed a note to Mast & Co., which note was before its delivery guaranteed by one Mowery. It was correctly held in that case that a joint action would not lie against the maker and guarantor of a promissory note. The indorsement in that case did not transfer the note. In the case at bar the payee sold and indorsed the note to Wolfe using the words: "I guarantee the payment of the within note, waiving demand and notice of protest." The indorsement in this case being signed by the payee, operated as a transfer of...