Brown v. Brown

| Ind. | Dec 13, 1861

Perkins, J.

Application for a restraining order. Application denied.

The case made is this: At the January term, 1858, Samuel Q. Brown recovered a judgment against Thomas M. Springsteen and Thomas II Brown, upon a promissory note, for a fraction over $100. In August following, an execution issued on the judgment, and was levied upon personal property of Springsteen, who gave a bond, with one Miller as surety, for its delivery to the sheriff on the day named for its sale. The delivery bond was forfeited, and the sheriff then levied upon property of the other defendant, Brown. After this, viz., in January, 1859, said defendant, Brown, on proceedings had for the purpose, in the Court where the judgment against him and Springsteen was rendered, obtained an entry of record that he was surety for Springsteen in the debt sought to be collected, and that the sheriff first exhaust the property of the latter, in attempting to make the money on the judgment.

David T. Ijaird, for the appellant. James O. Veatoh, for the appellees.

It is not shown that Springsteen, the principal debtor, had any property that, could be reached by execution; but it is shown that the delivery bond is an ample security for the debt, Miller being entirely good. It is thus manifest that the only question to be decided, here is, was Brown, the plaintiff, bound to sue on the forfeited delivery bond, and suspend proceedings on the execution against the defendants Springsteen and Brovm, for the obtaining of his money? In other words, the question is, which surety, the one in the judgment, or in the delivery bond, must pay the money?

As between the plaintiff and the defendants in the original judgment below, both of the defendants were original, principal debtors; and it was only by virtue of the provisions of the statute under which the defendant, Brovm., procured himself to be declared a surety, that he was entitled to any favor from the sheriff in the collection of the judgment. Kirby v. Studebaker, 15 Ind. 45" court="Ind." date_filed="1860-11-27" href="https://app.midpage.ai/document/kirby-v-studebaker-7034851?utm_source=webapp" opinion_id="7034851">15 Ind. 45. But the statute goes no further than to direct the sheriff in his proceedings on executions in his hands. It does not require him, nor the plaintiff, to pursue collateral remedies.

On the merits, we do not see that security Brown has any equity over security Miller, but rather the reverse.

Per Guriam. — The judgment below is affirmed, with costs