58 Iowa 137 | Iowa | 1882
The question certified by the Circuit Court, upon which it is said to be desirable to haye the opinion of the Supreme Court, is whether, under the circumstances above stated, the defendant is discharged from liability.
It is provided by statute that a surety may, by the service of a written notice on the creditor, require him to bring suit or permit the surety to do so in the creditor’s name, at the surety’s cost. If the creditor refuses or neglects to do so, the surety is discharged. Code, § § 2108, 2109.
The plaintiff, without doubt, used due diligence in directing the justice to bring suit, but we think he is chargeable with the neglect of the justice in failing to obey the directions given. It is not sufficient to direct the institution of a suit, but the creditor must see it is actually commenced within the time fixed by statute. This case is in principle much like First National Bank v. Smith, 25 Iowa, 210.
The suit brought by the defendant was without authority of the holder or owner of the note, and .in no way controls the question under consideration. The defendant complied with the statute and could therefore securely wait the action of the creditor. He was not bound to inform the justice what he had done, but the duty was cast on the creditor to comply with the statute, in order to prevent the defendant’s discharge.
Reversed.