Green v. Tower ( 1892 )

The opinion of the court was delivered by

Valentine, J.:

This action was brought in the district court of Greenwood county on January 20, 1887, by Henry Tower against S. B. Green, to recover $155.15, alleged to be half the amount, with interest and costs, of a certain debt which Daniel Pees owed to H. C. Jackson, and for which Tower and Green were sureties, and which Tower was compelled to pay, Pees being insolvent. The case was tried before the court and a jury, and the jury found generally in favor of the plaintiff and against the defendant, and assessed the amount of the plaintiff’s recovery at $95.60; and also, in answer to certain special interrogatories submitted to them, made special findings; and the court rendered judgment in accordance with the general verdict; and the defendant, as plaintiff in error, brings the case to this court for review.

It appears that originally, and from December, 1884, to August 22, 1885, the plaintiff and the defendant were partners, engaged' in a general hardware business at Madison, under the firm-name of Tower & Green. Pees purchased a team of horses of Jackson upon credit, it being understood beforehand that both Tower and Green would become sureties for the amount. Afterward, and'on April 18, 1885, Pees gave the promissory note now in question (and two others) to Jackson for $135, due in 12 months after date, payable at the Emporia National Bank, and drawing interest at the rate of 12 per cent, per annum. Pees signed his name thereto, and then Tower wrote under Pees’ name “Tower,” and then Green wrote, “& Green,” immediately following the word “Tower,” so that the firm-name of Tower and Green, to wit, “Tower & Green,” appeared to be signed to the note. All this seems to have been for the accommodation of Pees alone. Tower and Green received no consideration for their signa— tures; and the transaction had no connection with the partnership affairs. On August 22, 1885, the firm of Tower •& Green was dissolved, and by the terms of the dissolution Tower was to continue the business and Green was to retire, all of which was done, and Tower was to collect the partnership accounts, settle the partnership business, and assume and pay the partnership debts. In addition to this, on September 4, 1885, Tower gave to Green a receipt for $265.06, in full of all accounts to date. Afterward, and on June 4,1886, Jackson recovered a judgment before a justice of the peace upon the aforesaid note against Pees and Tower and Green for the amount of $152.22, and execution was issued thereon, and Tower paid the same, with costs, amounting to $162.82; and Pees being insolvent, Tower commenced this action in the district court against Green, his co-surety, for contribution. The general verdict and special findings of the jury, omitting title and signatures, read as follows:

“Verdict: We, the jury in the above-entitled cause, do upon our oaths find for the plaintiff, and assess the amount of his recovery at $95.60.”

“special findings.

“1. Was the note in controversy signed by Tower & Green as sureties? A. It was.

“2. Was it a partnership or an individual liability? A. Each individually signed the note.

“3. When the partnership was dissolved, who assumed the liabilities of the partnership? A. Tower.

“4. Who signed the note in controversy as 'principal? A. Pees.

“ 5. If you find that the plaintiff has paid any part of the judgment, when did he pay it? A. August 6, 1886.

. “6. If you find that Daniel Pees is principal, was he solvent or insolvent at the time of the commencement of this action? A. Insolvent.

“7. If you find that Daniel Pees is principal upon the note in controversy, what demand, if any, has the plaintiff made of said Pees for the repayment of the money plaintiff has paid out on the judgment sued on? A. The evidence does not show any demand.

“8. If Daniel Pees gave a chattel mortgage to Henry Tower, what was said chattel mortgage given for — that is, to secure the payment of what? A. To secure the payment of a note of $141 and some cents.”

The above-mentioned chattel mortgage and note of $141 have nothing to do with this case.

The first alleged error is, that the court below permitted a transcript of the aforesaid judgment to be introduced in evidence, which transcript it is claimed showed upon its face that the judgment was rendered one hour too soon, and before the justice of the peace had acquired sufficient jurisdiction to render it; and therefore it is claimed that the transcript showed that the judgment was void. It,appears that the summons was made returnable on June 4, 1886, at 10 o’clock A. M. There is no question with regard to the service, but the only alleged irregularity is that the judgment was rendered too soon. The record with reference to the manner of rendering the judgment reads as follows: “June 4, 1886, 10 o’clock a.m. The plaintiff present by his agent, Geo. O. Lovett. The defendants, being three times called, still fail to appear. Upon hearing the proof and allegations of the plaintiff, I do render judgment by default. It is therefore,” etc.; and here follows the judgment.

Sections 73 and 83 of the justices’ act read as follows:

“Sec. 73. The bill of particulars of the plaintiff must be filed at the time the action is commenced, and that of the defendant must be filed at or before the hour named in the summons for the appearance of the defendant, unless further time be given by the justice, for good cause shown.”

“Sec. 83. If either party fail to appear at the time specified in the summons, or within one hour thereafter, or fail to attend at the time to which the trial has been adjourned, or fail to file the necessary bill of particulars, the cause may proceed at the request of the adverse party; and in all cases where a counterclaim or set-off has been filed before the dismissal of the cause by the plaintiff, the defendant shall have the right to proceed with the trial of his claim.”

Now, it does not appear from the record that any one of the defendants in the justice’s court filed any bill of particulars “at or before the hour named in the summons for the appearance of the defendants,” or at any other time, as prescribed by § 73 of the justices’ act. Nor does it appear that any one of the defendants made any appearance in the case at any time during the day on which the case was set for trial, or at any other time. Nor does it conclusively appear that the-judgment was rendered within less than an hour after the time specified in the summons for the appearance of the parties, and all presumptions should be in favor of the regularity of the proceedings, and not against them. Besides, we do think that the justice of the peace was without jurisdiction to render a judgment prior to the expiration of the hour. Of course, in cases where the defendants do not appear, the judgment should not be rendered until the hour has elapsed; but if the defendants do not appear at all what difference can it make? Besides, it makes but very little difference in the present ease whether the judgment shall be considered as void or as valid, for the debt was valid and Tower paid it, and he is now entitled to contribution.

The next alleged error is with regard to the court’s permitting leading questions to be asked, but as no particular leading question is designated, we do not think that it is necessary to make any comment. We might say, however, that we have not observed any prejudicial error in this regard.

The next and last alleged error is the court’s refusal to require the jury to answer the second question submitted to them more specifically and definitely. The court instructed the jury substantially that the fact that the note was signed in the firm-name was prima fade evidence that it was a firm liability, but that this prima fade fact might be overcome by testimony, and that the burden of proof was upon the plaintiff, so that evidently the jury understood what was intended to be submitted to them by the question; and they answered accordingly. The question was substantially to ascertain whether the note in question constituted a partuership liability or an individual liability; and the jury by their answer unquestionably intended to say that it constituted only an individual liability and not a partnership liability; and such we think was intended to be the case by Tower and Green, not only when they signed the note, but also when they dissolved their partnership. Evidently, when they dissolved their partnership they did not have in contemplation this note. This note was not due at the time, nor for about eight months afterward. They were not the principals on the note, but were merely sureties, and in all probability neither of them at that time had the slightest supposition that either would ever be required to pay anything on the note. At the time this note was given, two other notes of the same kind were also given, one of which was paid by Pees before the dissolution of the copartnership, and the other was paid by him afterward. After the dissolution, and after the payment of this second note, but before the third one, the one now in controversy, became due, which was about eight months after the dissolution of the copartnership, Pees became insolvent and could not pay such third note. We think that the answer of the jury to the second question was sufficiently definite and certain, and sufficiently intelligible to be understood, and the court below did not err in refusing to require the jury to make a more certain and definite answer.

The judgment of the court below will be affirmed.

All the Justices concurring.