Tucker v. Shiner

24 Iowa 334

• Court: Supreme Court of Iowa
• Decided: April 17, 1868
• Status: Published

Opinion

Wright, J.

1. parties: n°on-neegotiabie note’ It was entirely competent and proper for plaintiff to bring his action against the maker and payee of this instrument, whether the company shall he treated as an assignor, or as guarantor of the same. This is the plain meaning of section 2764, of the Revision; and the language there used “ and including the parties to negotiable paper,” is not to be taken as denying the right to join the maker and assign- or, or guarantor of an instrument not negotiable. This section is not more restrictive in this respect than section 1681, of the Code of 1851, and yet it was held, under that statute, that the assignor of a non-negotiable note (payable in property), who had assigned the same with an absolute guaranty, might be joined with the maker. Peddicord & Wyman v. Whittam, 9 Iowa, 472; and see Marvin v. Adamson et al., 11 id. 371, where this construction of the statute is fully sustained.

2. Pleading : causes'in^same count. II. It is declared, that the pleading may include one count only, where the same contract was made by each °*' the adverse parties, but must include different counts describing the different contracts 0f the adverse parties, when, as in the case of maker and indorser, the same contract was not made by all (Rev. § 2939).

Thus the law is written. It is not a question whether the appellant in this case was injured, as that word is sometimes used, by uniting the statement of plaintiff’s cause of action against the indorser in the same count against her; but what are her rights as here declared. And as to this there can be scarcely room for doubt. The law makers in their wisdom have required this division. We are not at liberty to disregard the command. The reasons for it we need not consider, though it might not be difficult to show their force. For this error, the cause is reversed and remanded.