Francis v. Bentley , 50 Iowa 59 ( 1878 )

Day, J.

note: guarantor : jurisdiction. i. 3?komissoh.y The defendant claims that the cause of action against W. J. Bentley is upon the note, and that against W. H. Bentley is upon a separate written contract, the contract of guaranty; that the causes of action should be presented in two distinct counts; and that the notice given in the justice’s court does not sufficiently apprise the defendant of the cause of action against him. If this suit had been commenced in a court of record the objections of defendant would be well taken; but the technical rules of pleading which prevail in courts of record are not applicable to proceedings in justices’ courts. To apply such rules to proceedings in those courts would in a great measure deprive litigants of the benefit of a tribunal which was designed to furnish a cheap and speedy means of determining controversies involving small amounts. Section 3518 of the Code provides that where actions are commenced in a justice’s court “no petition need be filed, * * * * but the notice must state the cause of action in general terms, sufficient to apprise the defendant of the nature of the claim against him.” The notice in this case• complies with this provision. It advises the defendant generally that a claim is .made against him upon a promissory note. The notice does not state that the claim is made against the defendant as the maker of a promissory note. Now, while the claim is really against the defendant as a guarantor, it is still true that, in a certain sense, it is upon a promissory note. The contract is written upon the note, and the introduction of the note, with the contract upon the back, is necessary to make out the plaintiff’s ease. The production of the guaranty alone would not entitle plaintiff to recover, for from it the extent of the defendant’s liability could not be determined. It cannot be reasonably supposed that the defendant was not advised, from this notice, of the real nature of the claim made against him, even without an examination of the note, which was filed with the justice. If he had taken the precaution to examine the note, as he might have done, he could not have remained ignorant of the nature of the claim. In view of the liberal construction which should be placed upon proceedings in justices’ courts, we feel clearly of opinion that the judgment is right.

Affirmed.