Carraway v. Odeneal

56 Miss. 223 | Miss. | 1878

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 answer 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.