Haynes v. Ezell ex rel. Walker

The statute of jeofails is very broad, but it cannot be extended to a case where the declaration -shows on its face, that the right of action in the instrument sued on is not in the party suing. Held, that the judgment is erroneous.

In error from the circuit court of Lowndes county; Hon. F. M. Rogers, judge. On the 28th of June, 1851, Ezell, for the use of Walker, sued out a writ in Lowndes, and on the 2d of July another, to Noxubee, from Lowndes, in the same case, as a branch writ, and indorsed as such. The writ to Lowndes purports to be executed on the 26th of June, 1851, on Conner. The cause of action as indorsed on the writ is, that “the action is founded on a promissory note indorsed by defendants to plaintiff,” and is copied as on a note to this effect, namely:— “January 1, 1849. “ One day after date I promise to pay William Ezell, or order, two hundred and twenty-one 22-100 dollars, for value received. (Signed) J. W. Eldridge.” The declaration is in the name of Ezell for the use of Walker, and alleges that Eldridge, the maker, had been sued to insolvency; describes the face of the note, and as payable to Ezell or order; then avers, that Ezell transferred it, by delivery, to the defendant in the suit, James P. Haynes, “ who thereby, then and there, became the owner thereof;” that Haynes transferred the same, “by writing on the back,” to said Conner, (the other defendant in the suit,) and that Conner transferred said note, “ in writing,” to Josephus Walker, the usee, whereby Conner “ guaranteed ” the payment of said note to Walker, and delivered it to him. On the 23d of September, 1851, a joint general judgment was entered, by default, against Haynes and Conner, whereby it was considered by the court, that the plaintiff recover of the defendants the sum of two hundred and sixty dollars and sixty-two cents, his damages sustained by reason of the nonperformance of the promise and assumption in the declaration mentioned, &c., when Haynes prayed this writ of error. 1. The proceedings do not,authorize or support the judgment. The liability, if any, is separate, and not joint. ■ 2. The damages are excessive, and are not warranted by the face of the papers. The judgment is for too much. 3. The papers affirmatively show, that plaintiff has no cause of action at all, and that no perfection in the pleadings can give him a legal cause of action. There is a total absence of a cause of action, and the statute of jeofails cannot supply one. Winston v. Miller, 12 S. & M. 554. 4. The declaration shows, that no judgment could be rendered, and that it was utterly impossible for such a suit to be maintained. The payee of a promissory note, payable to himself or order, brings suit in his own name, as having the legal title, for the use of a remote indorsee, against two intermediate indorsees. 5. The declaration avers, however, that the title passed out, by delivery, from the payee, and that Haynes thereby became the owner; that he indorsed it to Conner; and that Conner, in writing, transferred and guaranteed the same to Walker, the usee ; how, then, can any such action be supported in the name of Ezell for the use of Walker, or against Haynes as indorsee, or Conner as guarantor ? The declaration shows no legal liability on the part of either defendant. There was neither demand nor notice. 6. If Conner is liable at all, it is upon his guaranty directly to Walker himself; and Haynes cannot be liable as indorser, without showing the legal title out of Ezell. 71 The writ was issued to Lowndps on the 28th day of June, and professes to have been executed on the 26th of June. 8. A branch writ could not have been issued in such a case, and the jurisdiction of the person was illegally acquired. Hutch. & How, Dig. 578, § 7. Joint causes of action. Ib. 630, § 6. Applies to drawers and indorsers.