Creigh v. Hedrick , 5 W. Va. 140 ( 1872 )

Maxwell, J.

This was an action of debt in the name of Hedrick, who sued for the use of Tuckwiller, to recover from Creigh, Feamster and Montgomery, the amount of a certain writing obligatory for nine hundred dollars, with interest thereon. The case was on the docket for the first time at the. April term, 1867, of the circuit court, when an order was made reciting that the parties came by their attorneys, and on motion of the defendants, the judgment entered at rules in the clerk’s office was set aside; whereupon they filed their special pleas, to which the plaintiff replied generally, and the cause was continued.

It is now insisted here that by this order the office judgment had at rules against Creigh, was not set aside, but that it became final on the last day of that term of the court. The language of the order is-broad enough to include all of the defendants, but so far as can be gathered from the record the pleas filed at that term were filed by the defendants Feamster and Montgomery only, so that it must be intended they are the only defendants referred to. Moreover the pleas filed by Feamster and Montgomery could not have been received to set aside the office judgment against Creigh, as they set up no defense as to him. Code of Virginia, 1860, p. 714, ch. 171, sec. 45; Ender vs. Burch, 15 Gratt., 64; Alderson vs. Grimm, 3 W. Va., 229; Hinton vs. Ballard, 4 W. Va., 582. It must be held, that the judgment against Creigh became final on the last day of the April term, 1867, of the circuit court, and all the proceedings had in the cause subsequent to that iime, in respect to Creigh, are nullities. It is claimed that it was error not to overrule the special replications to the third and fourth special pleas of the defendant Montgomery. These replications admit the bringing of the suit, but aver that it was dismissed by consent of the said defendant; but it is insisted that it should be averred that the said defendant promised that if the suit was dismissed he would still stand bound. If the defendant Montgomery had given the notice, which made the plaintiff bring his suit, he might waive his right under the statute by consenting that the suit be dismissed, and remain bound as surety without any new promise. There is, therefore, nothing in the objection.

It is claimed that the court erred in excluding the evidence from the jury to show that Montgomery was the surety of Creigh.

On the part of the appellee it is insisted that the defendants were estopped by their bond from proving that they were sureties merely and not principals. The cases cited by counsel for appellee were cases in which it appeared on the face of the bond that the parties were bound “ as principals,” as in the case of Sprigg vs. The Bank of Mount Pleasant, reported in 10 Peters, 257, and again in 14 Peters, 201, or cases in which the defense was attempted to be made in a manner not allowed in the jurisdiction in which the cases occurred, none of which have any application to the case here.

The first section of chapter 101 of the Code, p. 541, which has been in force ever since 1794, in some form allows a surety, guarantor or endorser, by notice in writing to require the creditor to sue, which he must do in a reasonable time.

In the case of Wrights, adm’r., vs. Stockton, 5 Leigh, a defense arising under this statute was made at law. As the evidence offered by the appellant was not inconsistent with the face of the bond, it was error in the court to refuse to admit it, for which the judgment complained of will have to be reversed with costs to the appellants, and the cause remanded for a new trial to be had.

The other judges concurred.

Judghent reversed.