Page images
PDF
EPUB

Knarr v. Conway et al.

state of facts existed prior to such time as authorized him to enforce such lien before the third Monday in March.

We are of the opinion that the appellee showed no valid claim to the property in controversy, and that the court erred in overruling the motion for a new trial.

The judgment is reversed, with costs; and the cause is remanded, with directions to the court below to grant a new trial, and for further proceedings not inconsistent with this opinion.

M. C. Kerr and T. L. Smith, for appellants.

KNARR V. CONWAY ET AL.

FRACTICE.-Appeal.-Notice to Co-Parties.-Where all co-parties do not join in an appeal to the Supreme Court, notice must be served on those not joining, and proof thereof must be made, or the court will dismiss the appeal.

APPEAL from the Ripley Circuit Court.

PETTIT, J.-This suit was commenced by George Conway, Isaac Conway, and Fulvia Conway against Lewis Freyer, Henry W. Knarr, John H. Wernike, and Catharine Freyer. The parties were not changed in the court below, but all, plaintiffs and defendants, remained in it to final judgment. Knarr only appeals.

Section 551, 2 G. & H. 270, is as follows: "A part of several co-parties may appeal, but in such case they must serve notice of the appeal upon all the other co-parties, and file the proof thereof with the clerk of the Supreme Court. Unless they appear and decline to join, they shall be regarded as having joined, and shall be liable for their due proportion of the costs. If they decline to join, their names may be struck out, on motion, and they shall not take an appeal VOL. XXXVII.-17

37 258 128 137

Rittenhouse v. Kemp et al.

afterwards, nor shall they derive any benefit from the appeal,
unless from the necessity of the case, except persons under
legal disabilities." No such notice has been given, or filed
with the clerk of this court, and by a long line of numer-
ous decisions of this court, this appeal must be dismissed
as not having been properly perfected.

The appeal is dismissed, at the costs of the appellant.
G. Durbin, for appellant.

W. D. Ward and

Cravens, for appellees.

RITTENHOUSE v. Kemp et al.

PRINCIPAL AND SURETY.-Release.-Where a surety on a promissory note, after his release from liability, by an extension of time given to the principal without his consent, receives an indemnity against his liability, without the knowl edge of the holder, and subsequently surrenders the same to the principal, he may still avail himself of his discharge.

SAME.-Indemnity.—Return of.—The fact that the surety returned such indemnity, without the knowledge of the holder of the note, at a date anterior to a new extension of time being given without the consent of the surety, does not render the latter liable, where the holder of the note had no information in regard to the indemnity having been given to the surety when he extended the time of payment.

APPEAL from the Shelby Circuit Court.

DOWNEY, J.-Suit by the appellant against the appellees on the following writing obligatory:

"Twelve months after date we, or either of us, promise to pay Alexander Rittenhouse, or order, the sum of two thousand and two hundred dollars, for value received, without any relief from valuation or appraisement laws whatever. "DAVID KEMP. [SEAL.] JACOB FOX. [SEAL.]"

"December 11th, 1865. Fox answered, separately, first, that he was only security an the obligation for Kemp, which fact was known to Rittenhouse, and that Rittenhouse, by agreement with Kemp,

Rittenhouse. Kemp et al.

in consideration of the payment, in advance, of interest at the rate of ten per cent. per annum, extended the day of payment three several times without his knowledge or consent. The first agreement to extend the time is alleged to have been made on the 15th day of March, 1867, until the 31st day of December, 1867; the second on the 28th day of July, 1868, until the 1st day of January, 1869; and the third on the 1st day of March, 1869, for six months from January Ist, 1869.

The second paragraph is the same as the first, except that it alleges the extensions of payment, as follows: the first on the 15th day of March, 1867, from December 11th, 1866, to December 11th, 1867; the second on the 28th day of July, 1868, from December 11th, 1867, until December 11th, 1868; and the third on the 1st day of March, 1869, from December 11th, 1868, until December 11th, 1869. It is alleged that the sum of two hundred dollars was paid by Kemp to Rittenhouse at the date of each agreement, except the last, at which time one hundred dollars was paid, and a like sum agreed to be paid.

The plaintiff met these defences of Fox by pleading, first, the general denial; second, that on the day of May,

1868, and after Fox became a maker of said note, Kemp delivered to and deposited with Fox, for the purpose of indemnifying and saving harmless said Fox from liability and loss on account of said note, and for the purpose of paying off the same, a certain note dated the day of 1867,

and made by William Aiken and others, by which they promised to pay to Hiram Solomon five thousand dollars on or before the 25th day of December, 1868, which note said Solomon assigned to Matilda Kemp, the wife of said David Kemp, on the day of 1868, who afterward handed said note to said David Kemp, to be by him deposited with said Fox as security, and to indemnify him as above stated, and that he, the said Fox, should pay over the proceeds of said note to said plaintiff, in satisfaction of the note on which this suit is brought; and that Kemp did so

Rittenhouse v. Kemp et al.

deliver said note to said Fox, who received the same; that said note was, at all times, fully sufficient to indemnify said Fox against the payment of the note sued on, and to pay off and satisfy the same; and that Fox, without the knowledge or consent of the plaintiff, on the 8th day of January, 1869, placed said note in the hands of said David Kemp for col-* lection, and that he afterward, and before the commencement of this suit, received full payment of the same, but that no part of the money had been applied to the payment of the note sued on; wherefore, etc.

A demurrer was filed to the second paragraph of this reply and sustained, and the point was reserved by a proper exception.

Kemp and Fox united in an answer, alleging payment, on which issue was taken by general denial.

There was a trial by the court, finding in favor of Fox, and against Kemp, motion by the plaintiff for a new trial overruled, and judgment on the finding.

But two errors are properly assigned; first, the sustaining of the demurrer to the second paragraph of the reply; and second, the refusal to grant a new trial.

There is no controversy as to the sufficiency of the paragraphs of the answer of Fox.

The whole case resolves itself into the single question as to the sufficiency of the second paragraph of the reply. If that was sufficient to avoid the matters set up in the answer of Fox, then the judgment should be reversed. If not, it should be affirmed. The note of Aiken and others was the property of Mrs. Kemp, but we shall assume, as we think we must, that she, notwithstanding she was a feme covert, could legally place it in the hands of her husband, so as to enable him to bind her, by delivering it to Fox as security or indemnity to him, as the surety of her husband, and give him a valid right to collect it from the makers, and apply the proceeds according to the agreement.

It will be seen from the dates given that Mrs. Kemp did not acquire the note of Aiken and others from Solomon

Rittenhouse. Kemp et al.

until 1868, and consequently could not have delivered the same to her husband, nor could he have delivered the same to Fox, before that time. Prior to this time, according to the allegations of the answer, and we may as well remark, according to the evidence also, that is to say, on the 15th day of March, 1867, the note having previously matured, the contract was made between Rittenhouse and Kemp, without the knowledge or consent of Fox, for the first extension of the time of payment of the note, and by such extension Fox had been discharged from liability on the note. This gives rise to the question, did the receiving of that note by Fox, after he had been so discharged, revive his liability to the plaintiff, or does it prevent him from setting up the fact of such extension in his discharge?

It is not doubted that a promise by the security, after he has been thus discharged, with a knowledge by him of the discharge, will, without any new consideration, revive his liability. This is established by the following and other authorities: Fowler v. Brooks, 13 N. H. 240; Woodman v. Eastman, 10 N. H. 359; The Bank v. Johnson, 9 Ala. 621; Thornton v. Wynn, 12 Wheat. 183; Creamer v. Perry, 17 Pick. 332. But in this case, nothing is shown, except the receipt of the collateral, a promise to apply its proceeds to the payment of the debt, and the surrender of the collateral security. No promise by Fox to Rittenhouse to pay the debt is alleged, and we think none can be implied merely from the taking of the note as security under the agreement as alleged. If it had been alleged that Fox knew that the time of payment of the note mentioned in the complaint had been extended, there would have been more reason for contending that the taking of the indemnity by him would have made him liable. Had he not been already discharged before receiving the security, and had he still retained the same, the authorities are numerous that the giving of the time would not have discharged him. Moore v. Paine, 12 Wend. 123; Eastman v. Foster, 8 Met. 19; Chilton v. Robbins, 4 Ala. 223.

But in Fowler v. Brooks, supra, where, after his discharge,

« PreviousContinue »