Callahan v. Mitchell

Gregory, C. J. Mitchell sued Callahan on a joint and several promissory note, executed by the appellant and one John M. Callahan. The defendant answered that the note [419] was executed by John M. Callahan as principal and himself as surety. The court, on motion, struck out the answer. The defendant then filed his cross-complaint, setting up the same matter, and praying that John M. Callahan be made a defendant in the action. The court, on motion, rejected the cross-complaint. Did the court below err in striking out and rejecting the answer and cross-complaint ? A. Ennis, for appellant. J. S. .Hester and J. V. Mitchell, for appellee. The code provides that “when any action is brought against two or more defendants upon a contract, any one or more of the defendants being surety for the others, the surety may, upon a written complaint to the court, cause the question of suretyship to be tried and determined upon the issue made by the parties at the trial of the cause, or at any time before or after the trial, or at a subsequent • term; but such proceeding shall not affect the proceedings of the plaintiff.” 2 G. & H, § 674, p. 308. Here, the action was against one, and not two or more defendants. The plaintiff could not be delayed in his action by making a new party, simply to enable the .defendant to have settled the question of suretyship, and to have an order that the property of the principal be first taken. See Jones et al. v. Tincher et al. 15 Ind. 308. The appellant had bound himself in a joint and' several note; he must take the consequences of his own act. The appellee had the right to treat the note as a several obligation, and sue either of the makers. As between the makers and the payee, the former were each principals. The judgment is affirmed, with six per cent, damages and costs.