Hays v. Myrick

PETERS, J. No notice will be taken of the special pleas and the demurrers thereto, for the reason that the same questions arise upon the plea of the general issue pleaded with leave as above shown.- No question can arise on the evidence in the cause that may Dot be determined on that plea. And as all the evidence introduced on the trial is set out in the bill of exceptions and several charges asked upon them, which involve a consideration of the same matters as are pleaded in the special pleas, which were overturned by the demurrers, the decision must be the same, whether made in the one or the other mode. And if the allowance of the demurrers was error at all, it was error without injury, which is not sufficient to justify a reversal for that cause. — Powell v. Asten, 36 Ala. 140; Rodgers, Adm’r, v. Brazeale, 34 Ala. 512; Kannady v. Lambert, 37 Ala. 57; Lawson v. Hicks, 38 Ala. 279. Then, passing by the demurrers to the main question in the litigation, I think there was no error committed in the proceedings in the court below as shown by the bill of exceptions, which would entitle the appellant to a reversal,notwithstanding the ingenious and able argument of the learned counsel for the appellant in this court. It is true, that an assignor or an indorser of a note or bill is by the law-merchant regarded to some extent as the surety of the maker, who is to be regarded as the principal debtor. And if the holder of the note or bill either discharge or improperly suspend, his remedy against the maker, the assignors and indorsers will be discharged. This is a- general [344] rule of law in favor of mere securities which, applies to all contracts. — Smith Merc. Law, 268, Holc. & Ghol. ed., 1847. But this principle can not be said to apply in this case. There was no evidence of any improper suspension of the remedy which the law did not permit. The maker of the notes was sued to the first term of the court by the holder, after the notes fell due. This fixed the assignor’s liability to pay the notes, in the event they were not paid by the maker, and upon his insolvency, ascertained in the manner prescribed by the statute. This suit is in lieu of protest and notice of non-payment, and of demand on the maker, by the law-merchant. It was- intended to have no other effect. — Goggin v. Smith, Adm’r, 35 Ala. 683. Here, the evidence introduced by the plaintiffs, on the trial, fully sustains the allegations of the complaint. This was all the diligence required by the Code. The language of the law is this: “On all contracts assigned by writing, except bills of exchange, or other instruments and notes payable in money at a bank or private banking house, when the amount due is over fifty dollars, to charge the indorser or assignor, suit must be brought against the maker in the county of his residence to the first court to which suit can properly be brought after making the indorsement or assignment ; and .if judgment is obtained, execution must be issued returnable to the next court thereafter, and his inability to answer such judgment proved by the return of “no property.” — Rev. Code, § 1851. To fix the liability of the assignor, the first step is to bring the suit against, the maker within the proper time. After this is done, the progress C>f the cause in court, until the final judgment, is a matter wholly within the control and discretion of the court. Whether a cause is tried or continued, is a matter of discretion. And the presumption is, that the continuance has been allowed upon sufficient showing. — Lucas v. Hitchcock, 2 Ala. 287. And that which has "been done in court with due and legal dispatch, can not be' said to be negligence. At least, it can not be said to be such negligence as the statute forbids in this case. To fix any other, would be legislation. It would go beyond the words or [345] the purpose of the statute. The statute above quoted very clearly fixes all the prerequisites of diligence necessary to bind the assignor. This court can neither add to these, nor diminish their number. In this case, the proofs show that they were all complied with, in due course and process of law. This was enough. — Const. Ala. 1867, Art. I, § 15; Rev. Code, § 1851; Bates v. Ryland, 6 Ala. 668. The objection that the verdict in the court below was for a larger sum than was justified by the claim set up in the complaint, and that the judgment follows the verdict, can not be made for the first time in this court. It is such an error, if it exists, that might have been corrected in the court below, and its correction ought first to have been sought there. — Evans v. Bridges, 4 Port. 348; S. C., Smith Cond. 221; Moore v. Coolidge, 1 Port. 280; S. C., Smith Cond. 477. The judgment of the court below is affirmed.