
    Dorothy v. Hicks et al.
    1. Practice: division of misjoined causes : new petition in separate cause : necessity of notice. Action in three counts against ihe three joint makers of three promissory notes. The first maker pleaded that he was but surety on the first and third notes, and the second and third makers pleaded that they were but sureties on the second note, and judgment was asked accordingly; whereupon the plaintiff was allowed, against the objections of the second and third makers, to dismiss the cause of action on the second note as to the first maker, and, because of the misjoinder of causes thus resulting, to file a separate petition against the second and third makers upon the second note, to which they were required to answer by noon of the succeeding day: — Held that in this there was no error; (Code, §§ 2550, 2631;) that the defendants to the new petition, being already in court on the same cause of action,, could not demand the service of a new original notice, and that, if they wanted more time to answer, they should have asked it of the court below. Adams, J., dissenting.
    
    2. Promissory Note: action against principal and surety: right to pursue surety alone. Where an action at law has been begun against the principal and surety in a note, and the surety has set up the fact of his suretyship and asked judgment accordingly, the plaintiff is not by reason of such plea bound to pursue the alleged principal, but may dismiss as to him, and pursue the surety alone, because, as to plaintiff, both are principals, and he may pursue either or both.
    
      Appeal from Monroe District Court.
    
    Thursday, April 10.
    Action at law upon tbree promissory notes; judgment for plaintiff on one of the notes, and defendants ajipeal.
    
      Perry c& Townsend, U. W. Gleason, and John F. Lacey, for appellants.
    
      II. L. Dashiell, for appellee.
   Seevers, J.

There were three counts in the petition. The first and third were on notes signed by "Win. Hicks, Aaron Hicks and T. S. Tharp. The second count was on a note signed by T. S. Tharp, Aaron Hicks and Win. Hicks. Thar]) filed an answer, in which he admitted the execution of the notes, and pleaded that he was surety thereon only, and he asked that whatever judgment was rendered should be against him as surety, and the other defendants as principals. The other defendants pleaded a defense as to the notes declared on in the first and third counts, and as to the notes declared on. in the second count they alleged that they were sureties only, and that Tharp was the principal debtor, and asked that any judgment rendered should state who was principal and who was surety.

Upon filing this answer, the plaintiff dismissed the cause of action in the second count as to Tharp, to which the other defendants objected, for the reason that they were sureties only, and that such dismissal would prejudice their rights. The objection was overruled, and to the action of the court allowing the action to be dismissed, as just stated, the defendants excepted. Thereupon the defendants, "Win. and Aaron Hicks, filed a supplemental answer, in which they again pleaded that Tharp was the principal, and they sureties, on the note declared on in the second count, and that Tharp had not pleaded any defense thereto, and that, therefore, the plaintiff had the right to take a judgment, which would be a lien on a large tract of land owned by Tharp, and that they had demanded in open court that the plaintiff should cause such judgment to be entered, but that plaintiff, for the purpose of oppressing the defendants, dismissed the action against Tharp, and was seeking to obtain judgment against the defendants. To this defense there was a demurrer, which was sustained, and the defendants excepted.

• The defendants jfieaded in another paragraph of their supplemental answer-that, as the action against Tharp had been dismissed, there was a misjoinder of causes of action. To this paragraph a demurrer filed by the plaintiff was overruled. Thereupon the plaintiff asked and obtained leave to file a separate petition on the cause of action set up in the second count of the original petition, against the defendants Win. and Aaron ITicks, and the court directed tliat they should answer said petition by noon of the succeeding day. To this action of the court the defendants excepted, and, failing to answer as above required, judgment was rendered against them. The legal propositions discussed by counsel, and to be determined, are:

I. Did the court err in allowing a separate petition to be filed under the facts above stated? In effect, the court allowed a new action to be brought upon a cause of action embraced in the original petition. It cannot be said that a new and independent cause of action was stated or declared on m what is designated as the separate petition. The only difference between the latter and the original petition is that, in the separate petition, so called, a recovery .is sought on the same cause of action contained in the original .petition, against two, instead of three, persons, as was claimed in the original petition.

The parties against whom such judgment was asked had been brought into court by service of notice, and the action as originally brought was still pending against them. The plaintiff had the right to wholly dismiss the second count in the petition, and proceed to trial on the remaining counts; (Code, § 2631;) and he could have brought a new action on the cause of action declared on in the second count of the original petition, against the present defendants only, and brought them into court by the service of notice. Code, § 2550.

Now, this is precisely what the court permitted the plaintiff to do, except that he was not required to bring the defendants into court by the service of notice. As they were then in court, and were required to defend against this same cause of action, we do not see how they were prejudiced by the simple order requiring them to answer the new suit without the service of notice. It seems to us that to require notice to be served under such circumstances was not only unnecessary, btit useless. If longer time to answer the petition was desired than had been given by the court, the defendants should have asked that such time be granted. No complaint was made below that more time was wanted to answer the petition, and no such question can be presented here for the first time.

II. The next question is, whether the court erred in sustaining the demurrer to a part of the answer. As to the plaintiff, all of the defendants were principals, although between themselves the defendants were . . sureties and lharp the principal debtor, except for two purposes. If the defendants were sure-

ties, they had the right, by giving the requisite notice, to require the plaintiff to bring suit, or permit them to do so. Code, § 2108. No such notice was given.

The defendants had the further right, if sued jointly with Tharp, to have the j udgment state that they were sureties, and, in such case, Tharp’s property must be first exhausted before they could be called upon. Code, § 3042. Whether such an order could'have been made in this case, we have no occasion to determine, because no such relief was asked as to tlie last or separate petition. It is quite evident, we think, that the fact that the defendants were sureties only did not constitute a defense at law. Whether it would inequity, we have no occasion to determine.

Affirmed.

Adams, J.,

dissenting.- — -The majority say that “in effect the court allowed a new action to be brought upon a cause of action embraced in the original petition.” The question presented is as to whether the persons named as defendants in the petition could properly be made parties to the new action without the service of notice upon them, and without tlieir appearance in such action. It appears to me that they could not. The case does not come under section 2634 of the Code, because no motion was sustained on the ground of misjoinder* of causes of action; and in my opinion the proceeding was irregular and unwarranted.  