RANDALL ET AL. v. GUNTER

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Docket Number

No. 33097.

Attorney(S)

Sturdivant Holloman, of Columbus, for appellants. The sole question presented for decision is: Did the lower court commit reversible error in rendering and entering judgment by default against the appellants (defendants in the lower court) while their pleas of the general issue and notice thereunder of special matter in avoidance and in bar remained on file undisposed of? Appellants insist that the answer to the question must be in the affirmative, and that a reversal of the case must be ordered. The question is no longer a debatable one in this state. The established rule was tersely stated in the recent case of McIntosh v. Munson Road Machinery Co., 167 Miss. 546, 145 So. 731, by Justice McGowen as follows: "On appeal, this court has uniformly held that judgments by default, rendered when there is a plea on file, which plea is not a nullity, are erroneous, and many cases have been reversed for that reason. Beginning with the case of Dean v. McKinstry, 2 S. M. 213, and ending with the case of Dalton et al. v. Rhodes Motor Co., 153 Miss. 51, 120 So. 821, this court has announced the rule that a judgment by default, rendered at a time when a plea is on file, even though it was defective, is an erroneous judgment, and, for that reason, the case would be reversed." Biloxi Lbr. Exp. Co. v. New Orleans Ry. Mill Supply Co., 28 So. 21; Hambrick v. Dent, 70 Miss. 59, 11 So. 608; Beard v. Orr Lindsey Shoe Co., 8 So. 512. The same rule and principle have been applied by this court and reversals and remands ordered in the following cases, among others, where judgments by default had been given in the lower court when there were on file, undisposed of, pleas of the defendant of various kinds, to-wit: Selser v. Wilkinson, 1 Miss. (Walk.) 108 (plea of payment); Rowley v. Cummings, 9 Miss. (1 S. M.) 340 (demurrer to plea in abatement in attachment); McEwin v. State, 11 Miss. (3 S. M.) 120 (plea of nul tiel record not actually filed but by agreement of counsel considered as filed in default proceedings on recognizance bond); Kidd v. Harris, 30 Miss. 396 (general issue and plea denying ownership of note sued on); Taylor v. McNairy, 42 Miss. 276 (plea of failure and want of consideration for note sued on); Shirley v. Conway, 44 Miss. 434 (plea of not guilty in ejectment); Dean v. McKinstry, 2 S M. 213 (plea of non-assumpsit). W.L. Sims, of Columbus, for appellee. We take the position that the appellants, O.S. Randall and E. Randall, cannot complain at the judgment entered against them on account of the pleadings filed in this cause and not disposed of at the time the judgment was rendered; that they are only indorsers of the original note, and the principal in said note made no motion to set aside said judgment nor has he appealed from said judgment; that the appellants' pleas of the general issue and notice of special affirmative matter thereunder, to-wit, payment of the note sued on in the plaintiff's declaration, has been waived by the principal of said note and that the indorsers, the appellants herein, cannot complain; that the amended plea of general issue and notice of special affirmative matter as set out was made specially by the principal of said note as shown. We submit further that the holder of the note originally is now deceased and principal, or the appellants herein, have no defense against the present holder of said note. For the reasons given, and without prolonging the discussion we ask that the cause be affirmed.

Judges

Anderson, J., delivered the opinion of the court.

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RANDALL et al. v. GUNTER.

1. JUDGMENT.

A judgment by default is erroneous where there is a plea on file presenting a valid defense.

2. JUDGMENT.

In suit on note, granting default judgment for plaintiff was erroneous, where plea of the general issue with notice of payment by all defendants was undisposed of.

3. APPEAL AND ERROR. Principal and surety.

In suit on note against principal maker and sureties, principal maker's failure to move for new trial or to appeal after default judgment for plaintiff was rendered, notwithstanding that plea of general issue with notice of payment by all defendants was undisposed of, did not precude appeal by sureties or operate as waiver of defense of payment on part of sureties.

4. PRINCIPAL AND SURETY.

In suit on note against principal maker and sureties, if note was paid, no action or inaction on part of principal maker could make sureties liable.

Anderson, J., delivered the opinion of the court.

Suit was brought in the circuit court of Lowndes county by appellee, as administrator of the estate of H.H. Gunter, deceased, against J.M. Holloway and appellants, O.S. Randall and E. Randall, on a promissory note of $200, executed by Holloway and the Randalls and payable to the order of the deceased. There was a judgment by default against all the makers of the note, from which appellants appeal, Holloway not joining therein. Judgment by default was taken at a time when there was on file and undisposed of a plea of the general issue with notice of payment by all the defendants. A judgment by default where there is a plea on file presenting a valid defense is erroneous. McIntosh v. Munson Road Machinery Co., 167 Miss. 546, 145 So. 731; Dalton v. Rhodes Motor Co., 153 Miss. 51, 120 So. 821; Hambrick v. Dent, 70 Miss. 59, 11 So. 608; Biloxi Lumber Export Co. v. New Orleans Ry. Mill Supply Co., Miss., 28 So. 21; Beard v. Orr Lindsey Shoe Co., Miss., 8 So. 512; Selser v. Wilkinson, 1 Miss., Walk., 108; Rowley v. Cummings, 9 Miss. 340, 1 Smedes M. 340; Kidd v. Harris, 30 Miss. 396; Taylor v. McNairy, 42 Miss. 276; Shirley v. Conway, 44 Miss. 434; Dean v. McKinstry, 2 Smedes M. 213.

Appellee undertakes to justify the judgment upon the ground that Holloway was the principal maker of the note and appellants were only indorsers, and that the failure of the principal maker to move for a new trial or prosecute an appeal was a waiver of the defense set up in the plea and notice thereunder, binding on appellants as well as on the principal maker. In the first place, appellants appear on the note, not as sureties, but as principal makers with Holloway; but conceding that they were sureties, for the sake of the argument, the contention is without merit — the defense was payment of the note. If it was paid, there was no liability on the part of either the principal or the sureties, and by no move or failure to move in the case could the principal make the sureties liable.

Reversed and remanded.

RANDALL et al. v. GUNTER.

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