Moore v. Knox

SlMRALL, J. : It is assigned for error: 1st. Sustaining demurrer to the statute of limitations. Two pleas were filed in the order in which they appear in the records. The statute of limitations was the first, the other is a denial of the plaintiff’s character of administrator, and is thus introduced: “and the said defendant further answering, says,” etc. To both of these pleas there was a demurrer. It is shown by the record that the defendant confessed the demurrer to the first plea, and the court sustained it as to the second. There is nothing then in the record upon which the first assignment rests. If the error was intended to be imputed to the decision on the second plea, it is manifest that there is no error. The plea is a traverse of the allegation of the declaration, that the plaintiff is administrator of the goods, etc., of Elizabeth Knox, deceased, and, for the truth of his plea, puts himself upon the country. The defendant cannot dis [605] pute the character in which the plaintiff sues except by plea supported by affidavit. The plea being in disability of the plaintiff, and not in bar of the right, must be in abatement. The defendant declining to make further defense, final judgment was rendered. Nor was it error to dismiss as to Mahala Moore, and take judgment against the plaintiff in error. Both defendants were makers of the note. In Wilkinson v. Flowers et al., 37 Miss. 580, and Crump v. Worten, 41 ib. 614, it was held, that the statutes in reference to suing in one action all the parties to bills of exchange and promissory notes, applied to such paper having upon it secondary parties as indorser and drawee, where there has been acceptance. The intent of these laws, as declared in the last cited case, was to compel the holder to sue the maker or drawer (if resident in this state), in the same action with the indorser or acceptor. If all the defendants are joint makers, however, it is not erroneous to dismiss as to one, although he may be the principal, and take judgment against the other, who may be surety. This was declared in the first case cited, and rests upon the idea that both are bound to the plaintiff equally, jointly and severalty. Pool v. Hill et ux., 44 Miss. 311. It is lastly objected that this suit ought to have been brought in the county of the residence of Mahala Moore, because she is the principal debtor, and that the case is provided for by art. 11, p. 357, Code 1857. There are two features of this statute; first, the makers, acceptors, drawees and indorsers shall be sued in a joint action; second, the suit shall be brought in the county where the party to the suit first liable shall reside. That is to say, in the county of the residence of the maker or acceptor. Within the statute, as judicially expounded, if there be two makers standing toward each other as principal and surety, such suit may well be brought in the county where either of them resides. The cases of Wooley v. Bowie, 41 Miss. 553, and Andrews v. Powell, ib. 736, do not apply, because in those cases there was not a defendant in the county where the suit was [606] brought. The only defendants before the court were those resident in other counties served with duplicate writs. In the case at bar, the plaintiff in error was served in Lauder-dale county where the suit was brought, and the writ as to the other defendant sent to another county was returned not found. There is no error and the judgment will be affirmed.