Jackson v. Murray , 77 Tex. 644 ( 1890 )

COLLARD, Judge.

—The ground upon which a surety is entitled to contribution is that he has paid the debt for which he and his cosurety were bound. He could not maintain the suit for contribution on the original contract. Holliman v. Rogers, 6 Texas, 91.

If the debt be just and can be enforced against the sureties, one of them may pay the same and claim contribution. He need not wait until he is compelled to pay by suit. Glasscock v. Hamilton, 62 Texas, 143.

The petition charges that plaintiffs paid the notes in which Fountain was principal and they and defendant Jackson were cosureties, and they asked judgment against Jackson for one-third of the debt so paid by them. Defendant, the appellant, excepted to the suit because he says he was discharged by the payment of the notes. The court overruled the exceptions and in so doing committed no error. The petition made C. C. Fountain, the principal debtor, a party defendant and asked for judgment against him for the whole amount of the debt for the benefit of plaintiff and their cosurety Jackson, and against Jackson for one-third of the debt paid by them.

The judgment was rendered for plaintiffs against Fountain for the whole debt and against Jackson for one-third of same paid by them. Jackson complains that the judgment was not responsive to plaintiffs’ prayer, in that it was not rendered in his favor as against Fountain as well as for plaintiffs. ‘We do not think he can complain, as he did not ask for any judgment over against Fountain for the amount he might be adjudged to pay, and did not join in plaintiffs’ prayer in that respect; besides, he had paid no part of the debt or judgment. He will be entitled to recover from Fountain any amount he may pay plaintiffs on their judgment against him after he makes such payment.

After plaintiffs’ judgment they had the court to enter a remittitur of the whole of their judgment against the defendant Fountain, allowing the judgment against Jackson to stand as rendered. Jackson complains of this proceeding, because he says it deprived him of his right in the judgment against' Fountain of his right to recover against him, and had the effect to discharge him. As before stated he had no right to complain; he had no interest in the judgment obtained against Fountain; he had paid no part of the debt or the judgment against him; his right to recover of Fountain would arise at the time he might pay the judgment.

We find no error in the judgment, and are of opinion it ought to be affirmed.

Affirmed.

Adopted June 17, 1890.