On Motion for Rehearing.
Appellee challenges our conclusion that appellant, accommodation maker of the note sued on, is not suable without joinder of the principal, Shine, saying: “ * * * the decision in this case announces an erroneous rule of law that is contrary to an impressive line of decisions by the Supreme Court.”
The cases cited to sustain this contention are: Ritter v. Hamilton, 4 Tex. 325 (1849); Reynolds v. Crump, 6 Tex. 85 (1851); Lewis v. Riggs, 9 Tex. 164 (1852); Terrel v. Townsend, 6 Tex. 149 (1851); Hooks v. Bramlette, 1 White and Willson Civil Cases 500, Sec. 863 (1880); McDonald v. Holt, 1 White and Willson Civil Cases 567, Sec. 1013 (1881); and Head v. Cleburne Building and Loan Association, 25 S.W. 810, Dallas Civil Appeals (1893).
The basic cases are the first four cases above cited, all decided before 1858. The last three cases merely follow the prior cases.
These cases hold that in order for a surety to have the statutory privilege of having his principal joined with him in a suit on an obligation he must have “contracted as a surety.”1
Appellant here did not contract (in writing at least) as a surety. He appears on the note as co-maker or co-principal.
In 1858 (Acts 1858 p. 112) the Legislature enacted a series of statutes regulating the relationship of principal and surety,2 one of which was new and is present Rule 32 Texas Rules of Civil Procedure, reading:
“May Have Question of Suretyship Tried
“When any suit is brought against two or more defendants upon aiiy contract, any one or more of the defendants being surety for the other, the surety may cause the question of surety-ship to be tried and determined upon the issue made for the parties defendant at the trial of the cause, or at any time before or after the trial or at a subsequent term. Such proceedings shall not delay the suit of the plaintiff.”
In 1919 the Legislature enacted a Negotiable Instruments Act, Title 98, Vernon’s Ann.Civil Statutes Art. 5935, Sec. 58, of such Act, reads in part as follows:
“Sec. 58. In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the *485same, defenses as if it were non-negotiable.”
A payee, such as appellee, is not a holder in due course. J. I. Case Threshing Maching Co. v. Howth, 116 Tex. 434, 293 S.W. 800, refusing writ of error to the Dallas Court of Civil Appeals, its opinion being reported in 280 S.W. 238.
This case also stands for the rule that a surety not contracting as such may, as to a holder not in due course, have his surety-ship established and be accorded the rights of a surety. We quote from the Supreme Court opinion:
“The 1925 Revised Statutes retain the articles whereby any surety may have a trial of the question of his sure-tyship, no matter what may be the form of his contract, and whereby any surety may require the prompt enforcement of the contract on which he is surety as soon as it matures. Articles 6244 and 6246, R.S. The statutory rights thus accorded the surety would be utterly defeated if he were compelled to abide by extensions consummated regardless of his will.”
The right of suretyship there enforced was the surety’s right of discharge from liability because of an unauthorized extension of the obligation. This is not a statutory right. Here, the right of suretyship invoked is one conferred by Rule 31, formerly Art. 6251, Title 110, R.C.S.1925, which is a procedural right only.
We believe that the rights of sureties to be protected extend to all statutory and common law rights once the fact of suretyship is established under circumstances binding on the holder of the obligation.
Cases - supporting this ruling are: First National Bank v. Alexander, 4 S.W.2d 298, Amarillo Civil Appeals, writ dismissed; Head v. Texas State Bank, 16 S.W.2d 298, 299, Eastland Civil Appeals; Stetson v. First National Bank of Cleveland, 44 S.W.2d 792, Beaumont Civil Appeals, 1931, writ ref. and Brinker v. First National Bank, 37 S.W.2d, Tex.Com. of App.
From the first case cited, we quote:
“A party who has signed a note as surety for the other maker may avail himself of the protection which the law affords as surety, as against the creditor, where the latter has knowledge of the relation as surety, though that relation does not appear from the. face of the instrument.”
It was pleaded and proved in this case that appellant was a surety and that ap-pellee had notice of this fact from the inception of the transaction.
As to the four principal cases cited and relied upon by appellee, they do not appear to have been overruled; they have simply faded away in the light of subsequent legislation and judicial decisions.
The motion is overruled.
. See also Head v. Cleburne Building and Loan Association, Tex.Civ.App., 25 S.W. 810, Jameson v. Officer, 15 Tex.Civ.App. 212, 39 S.W. 100 and Southern Building and Loan Association v. Skinner, Tex.Civ.App., 42 S.W. 320, which are of similar import.
. Title 110 R.C.S.1925, Arts. 6244-6252 inclusive.