Bank of Chillicothe v. Yoe

Ohio Supreme Court

Bank of Chillicothe v. Yoe

4 Ohio 113

DecidedDecember 15, 1829

StatusPublished

This text of 4 Ohio 113 (Bank of Chillicothe v. Yoe) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bank of Chillicothe v. Yoe, 4 Ohio 113 (Ohio 1829).

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Opinion

By the Court :

The question to be decided is, whether, upon a joint and several contract, made by the statute joint as to the suit and judgment, the complainants can go into equity before they have made use of their legal remedies. Section 9 of the act to regulate judicial proceedings, where banks and bankers are parties, authorizes a joint action against the drawers and indorsers, and declares that if the bank shall institute a separate action against drawer and indorser, no costs shall be recovered. The complainants claim they have lost their legal remedy, by the death of McKay, under the *provision of the statute. From anything that appears in the bill, the legal remedy is still perfect as against Creed, the survivor, whose insolvency is not even suggested, and against whom process of executi on has not been taken. The most favorable aspect of the bill places the complainants’ equity upon the restoration upon a naked legal right, lost by the act of God, under our .statutory regulations concerning banks. A court of chancery [115]*115would probably be open to the complainants, when they shall have exhausted their legal remedies, if a balance still remains due upon the judgment. But the complainants show no present necessity for a decree against the representatives of McKay, nor have they even alleged that such decree would facilitate the collection of their judgment. They came into this court, having, from their own showing, a perfect legal remedy against the survivor, which they have neglected to enforce, without furnishing any excuse whatever for their negligence. They are here as volunteers for one of the indorsers, without showing why the estate of the other should be liable for the payment of their judgment. In this bill the court can not settle the equitable rights of the indorsers, especially as only one of them is made a party. Those who are interested should be left to their own litigation without the interference of strangers. Bill dismissed with costs.

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By the Court :

The question to be decided is, whether, upon a joint and several contract, made by the statute joint as to the suit and judgment, the complainants can go into equity before they have made use of their legal remedies. Section 9 of the act to regulate judicial proceedings, where banks and bankers are parties, authorizes a joint action against the drawers and indorsers, and declares that if the bank shall institute a separate action against drawer and indorser, no costs shall be recovered. The complainants claim they have lost their legal remedy, by the death of McKay, under the *provision of the statute. From anything that appears in the bill, the legal remedy is still perfect as against Creed, the survivor, whose insolvency is not even suggested, and against whom process of executi on has not been taken. The most favorable aspect of the bill places the complainants’ equity upon the restoration upon a naked legal right, lost by the act of God, under our .statutory regulations concerning banks. A court of chancery [115]*115would probably be open to the complainants, when they shall have exhausted their legal remedies, if a balance still remains due upon the judgment. But the complainants show no present necessity for a decree against the representatives of McKay, nor have they even alleged that such decree would facilitate the collection of their judgment. They came into this court, having, from their own showing, a perfect legal remedy against the survivor, which they have neglected to enforce, without furnishing any excuse whatever for their negligence. They are here as volunteers for one of the indorsers, without showing why the estate of the other should be liable for the payment of their judgment. In this bill the court can not settle the equitable rights of the indorsers, especially as only one of them is made a party. Those who are interested should be left to their own litigation without the interference of strangers. Bill dismissed with costs.

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Bluebook (online)

4 Ohio 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-chillicothe-v-yoe-ohio-1829.