Carraway v. Odeneal

Mississippi Supreme Court April 15, 1878

Carraway v. Odeneal, 56 Miss. 223 (Miss. 1878)

Campbell

Opinion of the Court

Campbell, J.,

delivered the opinion of the court.

A surety who is a party to an arrangement for giving time by the creditor, and assenting to it, will not be discharged by such giving of time. Appellant was a defendant in the action, and was, constructively, present at the rendition of the judgment, and was a party to it, and is bound by it, as having assented to it. Ammons et al. v. Whitehead, 31 Miss. 99. The judgment is in the nature of a new contract made with both. '

The agreement of Odeneal to be satisfied by payment of $500, and one and one-half per cent interest per month, -was without consideration, and void, and he is entitled to the full amount of the judgment.

The damages were properly calculated on the full amount of the judgment-enjoined, it appearing that the whole amount is due. The credit for $63, claimed in the argument, is not claimed by the bill, and it does not appear that the judgment was for more than was due on the note.

The motion to dissolve was properly heard ten days after *227answer filed. Code, sect. 1049. It is correct practice for the respondent to give notice of tbe motion to dissolve to the opposite party on the day the answer is filed, if he sees proper thus to speed the cause ; and the complainant cannot complain of the hearing of such motion ten days after the filing of the answer, if the law is complied with in other respects.

Decree affirmed.

Reference

Full Case Name: L. W. Carraway v. J. H. Odeneal
Cited By: 1 case
Status: Published
Syllabus: 1. Principal and Surety. Promissory note. Judgment. Time of payment extended. In an action against the makers of a promissory note, one of whom is principal and the other surety, if the principal agree with the plaintiif that judgment shall be rendered against himself and his co-defendant, with a stay of execution for a given time, and the judgment is accordingly entered, the surety is not discharged from liability by the holder of the note giving the principal further time for payment, but is held as a party to the agreement, and bound by it, although he never consented to it, or knew anything of it; for, being a defendant in the action, he is constructively present at the rendition of the judgment, which is in the nature of a new contract with both defendants. 2. Promissory Note. Agreement to take less than amount due. Effect. Where the holder of a promissory note agrees with the maker thereof to take less than the amount legally due on the note if paid within a given time, the note being then overdue, the agreement is void for want of a consideration, and the holder of the note may collect the full amount due thereon. 3. Chancery Practice. Motion to dissolve injunction. Under sect. 1049 of the Code of 1871, a motion to dissolve an injunction may be heard on the tenth day after the filing of the answer, and the motion may be entered and notice be given to the complainant on the day of such filing.