Rush v. Bishop

Watts, J. Com. App.

But one question is presented by the record’ for determination, and that is, Was the plaintiff in error properly joined as a defendant in this suit? The statute provides that where there are two or more defendants residing in different counties, the suit may be brought in the county where either of the defendants resides. If, therefore, the several defendants could be joined in this-case, then, undoubtedly, the suit was properly brought against all the defendants in Karnes county.

As was truly remarked by the court in Clegg v. Varnell, 18 Tex., 301, “ The rule against multiplicity of suits has peculiar force in our system of procedure. Within reasonable limits it is the cardinal principle as to joinder of parties and causes of action. Even jurisdictions which are distinct and separate in other states are blended in our system; and legal and equitable causes of action and grounds of defense may be adjusted in a single controversy.”

From the nature of the subject the joinder of parties and causes of action must be left largely to the discretion of the trial court; the exercise of which will not be revised unless a palpable abuse of it is shown. De Gress v. Hubbard, Texas Law Journal.

In chancery practice all persons who - might be affected by the decree are proper, though they may not be necessary, parties to the suit.

The doctrine at law is, that the undertaking which is to serve as a foundation for an action for contribution must import a joint liability. Prescott v. Perkins, 16 N. H., 305.

It is said in Parsons on Contracts, vol. 1, p. 36: “ The right of contribution exists against all who are sureties for the same debt, although their primary liability depends upon different instruments.” And in Foster v. Johnson, 5 Vt., 60, it is held that an action "for contribution will lie as well where there are several sureties as where there are only two.

It has been held that the payment of a note by the surety does not, as between him and the principal, extinguish the note; and that the surety’s right of action against the principal was upon the note. Tutt v. Thornton, 57 Tex., 36.

As a basis for contribution the defendant in 'error relies upon the administrator’s bond, which in the terms of the law is a joint obligation. And, as the liability of the co-sureties for contribution depends upon the terms and effect of the original undertaking, so it seems that original undertaking should be considered in determining the question of joinder of parties.

It is alleged in this case that the principal on the bond died insolvent, and admitted payment of a certain amount by one of the co-sureties. And an adjustment of the equities between the parties, and judgment accordingly, is prayed for.

Under the circumstances of this case we are of the opinion that the plaintiff in error was properly joined as a defendant in this case, and that the court did not err in overruling his exceptions to the petition.

Our report is that the judgment ought to be affirmed.

Affirmed.

[Opinion approved October 16, 1883.]