Hightower v. Ogletree , 114 Ala. 94 ( 1896 )

HARALSON, J. —

1. The first plea of the defendant was that of the general issue. The second, the legal sufficiency of which was not questioned, set up that the defendant, Hightower, was the surety of Griffin, the other maker of the note, and that he gave the notice authorized by statute (Code of 1886, § 3153) to the plaintiff, the payee of the note, to bring suit against the principal debtor, and that suit was not brought thereon to the first court to which it could be brought, after the receipt of such notice, and prosecuted with diligence according to the ordinary course of law, wherefore he pleaded his discharge from liability thereon.

To this plea the plaintiff replied, and defendant, High-tower, demurred to the replication. The replication may have set up more than was necessary, but, if the facts therein replied were true, they constitute a good excuse for not suing earlier than is alleged. The demurrer to the replication was, therefore, properly overruled. Thereupon said defendant filed rejoinders, numbered 2, 3 and 4 to the replication. Demurrers were interposed by the plaintiff to these rejoinders, and they were sustained, as is shown by the counter abstract, to the ones numbered 2 and 4, and overruled as to the third. An inspection of the third rejoinder discloses, that it is no more in substance than the 2d plea of defendant. The plaintiff should have objected to its filing, but when filed, instead of demurring to it, he should have moved to strike it out, for .being but a repetition of defendant’s 2d plea. But, as this was not done, we must treat it as having no office to perform, which does not belong to the 2d plea. Rejoinders to replications should confess and avoid them, as is .proper with replications to pleas which they profess to answer. — Stephens on Pl., 94; 1 Chit, on Pl., *651; Lee v. DeBardelaben C. & L. Co., 102 Ala. 628 ; Code of 1886, § 2688.

2. The case appears, therefore, to have been tried upon the plaintiff’s replication to the second plea. This replication sets up in substance, that at the time the plaintiff was notified by Hightower, the surety on the note, to sue Griffin, the principal, Griffin was not in the State of Alabama, but had removed to the State of Georgia, and never returned to Alabama until after this suit had been brought by plaintiff against said High-tower, who never gave plaintiff any notice in writing to bring suit against Griffin after his return to the State, and that as soon as the plaintiff learned that Griffin had returned to the State, and within the jurisdiction of the court, he amended his complaint, by joining the said Griffin as a party defendant thereto, at the July Term, 1893, of said court.

The main question here presented is, did the fact of the non-residence of the principal on the note excuse the plaintiff, its holder, from suing to the first term of the court, to which suit could have been brought after notice by the surety go sue. So far as we are aware, in construction of section 3153 of the Code, this question has not heretofore been directly before this court. Missouri and Indiana have statutes similar to ours, and it has been decided in those States. In Phillips v. Riley, 27 Mo. 386, it is held, that a surety on a promissory note who gives notice to the payee to commence suit immediately against the principal, who was a non-resident at the time, is not exonerated from liability by a failure of the payee to commence suit within thirty days after notice, — as.required by the statute ; that the surety by his .notice to sue could not compel the plaintiff to go out of the State to sue the principal. To the same effect are Rowe v. Buchtel, 13 Ind. 381, and Conklin v. Conklin, 54 Ind. 289. In the latter case, the court say, “that the rule which makes it unnecessary for the creditor to go .out of the State to sue the principal, on notice from the surety, works no hardship on the surety. The latter may at once pay the debt, and follow the principal wherever he may go, and enforce his remedy against him.

Section 1778 of the Code provides, as to contracts for the payment of money, where the amount due exceeds $100, to charge the indorser or assignor, that suit must be brought against the maker to the first court to which suit can properly be brought after making the indorsement or assignment. One of the excuses for not suing as required by that section is, when the maker has no known place of residence in the State. — Code of 1886, § 1780. The law as contained in this section has existed substantially since 1828, (Clay’s Dig. 383, §§12, 14) ; and is to be found in the Codes subsequent to that time. In construing this section, this court long ago held, that the holder of the note was excused from bringing the suit to charge the indorser, when the maker had removed from the State and remained during the period when he might be legally sued. — 1 Brick. Dig. 279, §§ 381, 382, 383. The effect of the Code, as held, was to render the liability of the assignor primary and absolute, whenever the maker has no known place of residence in the State, at the maturity'of the note. — Goggins v. Smith, 35 Ala. 683. Before that, in Lindsay v. Williams, 17 Ala. 231, it had been said by I)argan, C. J.: “We should hold, if an indorser did not know in what county the maker resided, and could not by diligent inquiry ascertain the county of his residence in time to sue to the first court, that this would be a sufficient excuse for failing to sue to the first term, and I think it may be well questioned whether it would not dispense with the necessity of a suit altogether, even if the holder by inquiry should afterwards ascertain the residence of the maker.” It was further held, that the extraordinary process of attachment would not be necessary in such case. — Woodcock v. Campbell, 2 Port 456, 463.

Section 3153 of the Code of 1886 has had substantial existence since 1821. — Clay’s Dig. p. 532, § 6. The requirement of the enactment at first was, that the holder of the note should commence suit thereon, not specifying that the action should be against the principal, and if suit were not commenced according to notice within a reasonable time, the surety was discharged. In the subsequent Codes the original enactment is amended so as to require the creditor, or any one holding the beneficial interest in the contract, on notice from the surety, to bring suit thereon against the principal debtor, and if not brought pursuant to notice, to the first court to which suit can be brought after the receipt of such notice, &c., the surety shall be discharged. The original act, as it appeared in Clay's Digest, is an older statute than the other act of 1828, touching the exoneration of assignors or indorsers, if suit is not commenced to the first court after the maturity of the debt. The said enactment of 1828 had received construction by this court as above shown. Indorsers are quasi sureties, and it is fair to presume, that the purpose of the legislature, in the amendment of the act of 1821, — as we find it first, so far as we are aware, in the Code of 1852, and in the subse-. quent Codes unchanged in this particular, — was to put sureties proper on as favorable a basis as indorsers or assignors had been placed by the said act of 1828, brought forward in the different Codes, and now constituting said section 1778 of the Code of 1886. The construction that had been given to said section 1778, therefore, applies to said section 3153. The debt of the principal is in law equally the debt of the surety,' and under neither of these statutes should the surety be released, unless the principal has failed to perform the duty required of him to the surety, of suing in the manner required by the statutes. There is nothing in these statutes which prevents suits against the indorser or assignor in the one case, and the surety in the other, and obtaining judgment, unless plaintiff has failed to sue the maker or principal debtor as the statute requires. If he has so failed, that would be a good plea in bar. It would,seem, in the adoption of the statute we construe, — section 3153 of the Code, — the purpose of the legislature is fully met, in the discharge of the surety, if the holder of the note, on notice to him by the surety to institute and prosecute suit against the principal in the manner required by the statute, fails or refuses to do so, in the absence of one of the statutory excuses for non-compliance with the requirements of the notice in writing. If one of those excuses exists, the holder may decline to sue as required, and the case stands, as for all else, as though no statute on the subject existed. If then Griffin was a non-resident of the State, at the time the notice was given to the holder by the defendant to sue him, this operated as an excuse for not suing him to the Erst court thereafter, and the liability of the surety on the note, as for this matter, became primary and absolute, for which judgment might have been rendered against him.

3. The 1st, 2d and 4th charges requested by plaintiff, and given, were free from error. The abstract shows, that the complaint was amended by making J. T. Griffin a party defendant.

The 3d and 8th charges have reference to the burden of proof of residence, and assert correct principles. The 5th and 7th were free from error and properly given.

The 6th charge was also free from error. The statute requires the notice to sue to be in writing.

4. The letters which Hightower said he received from Griffin in Georgia, and the contents of which the court allowed him to prove, on his cross-examination by plaintiff, against the objection of defendant, were not shown to have been written by Griffin. For aught appearing, they may have been mere forgeries. It was certainly not competent to speak of the contents of these letters, collateral though they were, to the main inquiry, without, proving that Griffin wrote them. It was shown that the letters were not in his handwriting, that he could not write, and the only reason witness had for supposing they were written by him was, that his name was signed to them.

There was no error in refusing to allow Griffin to file, at the time he proposed to do so, an additional plea of non est factum. — State v. Tutwiler, 57 Ala. 113.

There are other errors assigned on exceptions reserved to the admission and exclusion of evidence, which appear to be without merit, but, even if meritorious, are not insisted on in argument, and were, therefore, waived. We deem it unnecessary to notice them.

For the errors indicated, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.