150 Ark. 478 | Ark. | 1921
(after stating the facts). The defendant seeks to uphold the judgment under 8287, 8288, of Crawford & Moses’ Digest. Sec. 8287 is as follows:
“Any person bound as surety for another in any bond, bill or note, for the payment of money or the delivery of property, may, at any time after action hath accrued thereon, by notice in writing, require the person having such right of action forthwith to commence suit against the principal debtor and other party liable.”
Sec. 8288 provides that if such suit be not commenced within thirty days after the service of such notice and proceeded on with due diligence in the ordinary coirrse of law to judgment and execution, such surety shall be exonerated from liability to the persons notified.
The plaintiffs were the payees in the note, and notice to sue the principal debtors was given them in the manner and form provided in the statutes. The plaintiffs failed to sue the' principal debtors within thirty days after the service of the notice. It is contended by them, however, that W. D. Alexander, the surety, is not exonerated because he did not give notice under the statute until after he had been sued on the note. This did not make any difference.
A surety’s right to give notice to the creditor to sue and to secure his release, if suit is brought, is a right given by the statute, and not at common law. Sims v. Everett, 113 Ark. 198; Green v. McCullar, 128 Ark; 221, and Shores-Mueller Co. v. Palmer, 141 Ark. 64.
Hence we must look to the language of the statute for the exoneration. The statute provides that the notice may be given at any time after a cause of action has accrued on the note signed by the surety. If the framers of the statute had intended that no exoneration could be had under it after suit brought, they would have so provided by apt words. The language used in the statute is broad enough to cover cases where the notice was given after suit brought, and,‘there being nothing in the statute to indicate that the Legislature intended to restrict its operation to cases where suit had not been brought, the courts can impose no such limitation.
Therefore the judgment will be affirmed.
