Burdette v. Bartlett

ERROR to the Supreme Court of the District of Columbia.

This was an action brought by Bartlett, Robbins, & Co. against Howard, Peugh, Lacey, and Ross, as makers, and Helmick and Burdette, as indorsers, of a certain joint and several promissory note for $1,993, dated July 16, 1873, and payable to the order of said Helmick. The note was duly protested for non-payment, and the indorsers served with notice. The defendants, with the exception of Ross and Helmick, were served with process; but the action was subsequently dismissed as to all of them but Burdette. Judgment by default was rendered against him, which the general term, upon appeal, affirmed. Burdette then sued out this writ, and here assigns for error: 1. The court below erred in giving judgment for plaintiffs, because there was misjoinder of parties defendants. 2. Because the makers and indorsers of a promissory note cannot be joined as defendants in the same action.

Mr. William F. Mattingly, for the plaintiff in error.

Sect. 827 of the Revised Statutes relating to the District of Columbia unquestionably does not, in express terms, authorize the joinder of makers and indorsers of a promissory note as defendants. Where such is the intent of the legislature, it has been expressed in plain and unambiguous terms, as in Mississippi. Keary v. Farmers' & Merchants' Bank of Memphis, 16 Pet. 89.

That section was, by its terms, evidently intended to modify the common-law rule, that, in a case of a joint and several contract, all the parties must be sued in one action, or a separate action be brought against each, and to allow a plaintiff to unite, at his pleasure, two or more of the parties in one action.

The contract of a maker and that of an indorser of a promissory note are wholly distinct and different. The maker promises to pay absolutely, while the undertaking of the indorser is merely conditional; and, unless a statute in plain terms authorizes the parties to two such independent contracts to be joined in one action, no such construction should be given to it.

Mr. Andrew C. Bradley, contra.

The joinder of the makers and indorsers of a promissory note, or of part of them, as defendants in 'one action,' is expressly authorized by the statute; and such, since its enactment, has been the judicial construction uniformly given to it. No clause excludes from its provisions the parties severally liable upon promissory notes, whether as makers or as indorsers. The statute is a emedial one, and should be liberally construed. Atcheson v. Everitt, Cowp. 381; Eyston v. Studd, 2 Plowd. 465; Wilkinson v. Leland, 2 Pet. 267; 1 Bl. Com. 87; Dwarris on Statutes, 231.

What is implied in a statute is as much a part of it as what is expressed. Gelpcke v. City of Dubuque, 1 Wall. 221; Dubois v. Hepburn, 10 Pet. 1; Hoguet v. Wallace, 4 Dutch. (N. J.) 524; Cullerton v. Mead, 22 Cal. 95; Jackson v. Warren, 32 Ill. 331; Pearson v. Lovejoy, 53 Barb. (N. Y.) 407; People v. Tibbets, 4 Cow. (N. Y.) 384; Holmes v. Carley, 31 N. Y. 289; Hudler v. Golden, 36 id. 446; Adm'x of Tracy v. Adm'r of Card, 2 Ohio St. N. S. 431; Staniels et al. v. Raymond & Trustee, 4 Cush. (Mass.) 314; Gibson v. Jenney, 15 Mass. 205; State v. Jones et al., 8 Md. 88; Converse v. Burrows, 2 Minn. 229.

MR. JUSTICE HUNT delivered the opinion of the court.