Knox County Savings Bank v. Cottey

70 Mo. 150

• Court: Supreme Court of Missouri
• Decided: October 15, 1879
• Status: Published

Opinion

Norton, J. —

On the trial of this cause in the circuit court, defendant offered in evidence the record of a suit instituted in the Knox county circuit court on the note now in controversy, in which suit Johnson V.'Strode was sued together with Sylvester Shultz as the administrator of the individual estate of Jeremiah S. Strode, deceased, and one Riley Gardner. This suit was dismissed by the circuit court as to Johnson Y. Strode, and judgment was rendered against said Gardner, and Shultz as administrator, and leave was given to withdraw the note sued on. This evidence was rejected by the trial court, and its action in that respect is the only error alleged by defendant and appellant.

In view of sections 1, 2 and 4, Wagner’s Statutes, 269, declaring that all joint obligations shall be construed to be joint and several; that in the event of the death of one or more of the joint obligors, the debt shall survive against the administrator of the deceased obligor, as well as against the survivors; that in all cases of joint assumptions of co-partners, suits may be prosecuted against any one or more of those who are liable, and in view of the construction placed upon them in the cases of Oldham v. Henderson, 4 Mo. 295; Armstrong v. Prewitt, 5 Mo. 476; Bryant v. Hawkins, 47 Mo. 410; Gates v. Watson, 54 Mo. 585, we can perceive no error in the .action of the court in refusing'to allow the judgment against two joint obligoi’s to be ‘read as evidence in bar of a right of recovery against the administrator of the partnership estate of Strode & Son. The dismissal of the suit as to Johnson V. Strode placed him out of court as if he had never been brought in, and the suit then proceeded against the administrator of Jeremiah Strode’s .individual estate and one of the co-obligors on the note against whom judgment was rendered, leaving the holder of the note, under the authorities above cited, with power to sue Johnson V. Strode, either individually or as administrator of the partnership estate. Judgment affirmed.

All concur.