Getty v. Schantz
101 Wis. 229
Wis.
1898
Check Treatment
Wihslow, J.

This action was tried by the court, and it was manifest error to grant a nonsuit. In all actions tried by the court, the statute requires findings of fact and conclusions of law to be made. R. S. 1878, sec. 2863. If the court is of opinion upon the facts found that the plaintiff has made no case entitling him to judgment, the complaint should be dismissed upon the findings. Dietz v. Neenah, 91 Wis. 422. Still, if the evidence shows that the plaintiff has-in fact no cause of action, a judgment of dismissal will not be reversed merely because of the failure to make findings. Dietz v. Neenah, supra; Yahr v. Joint School Dist. 99 Wis. 281. In the present case there was substantially no dispute upon the facts; hence the question is whether, upon the undisputed facts, the judgment of dismissal of the complaint-was right.

The law governing the rights and liabilities of the guarantor of collection of a note is quite well settled in this court. He agrees to pay the debt upon the condition that the guarantee shall diligently prosecute the principal creditor without avail, using the ordinary legal means to that end, and exhausting any security that he may have before proceeding against the guarantor. Day v. Elmore, 4 Wis. 190; Cottrell v. New London F. Co. 94 Wis. 176. Mere delay to prosecute the principal for a short time is not sufficient to negative the use of due diligence, but such- delay may be continued so long as to release the guarantor as matter of law. Day v. Elmore, supra; MeFarlane v. Milwaukee, 51 Wis. 691. The prosecution of legal remedies against the principal to final judgment and execution within a reasonable time after the *234•debt falls cine is a condition precedent to the right of recovery against a guarantor, and this condition is not satisfied or done away with by proof that the principal was insolvent and that an action against him would have been fruitless. French v. Marsh, 29 Wis. 649; Salt Springs Nat. Bank v. Sloan, 135 N. Y. 371.

No arbitrary period of time has been set during which the creditor may delay prosecution of the principal without discharging the guarantor from liability; but it has been said that delay for two years or more, unexplained, will discharge the guarantor. McFarlane v. Milwaukee, supra. It is scarcely necessary to say that this does not mean that no delay for a less time than two years will discharge the guarantor. The principle has been frequently stated that clue diligence, in the absence of any special facts, requires the institution of suit at the first regular term after maturity of the obligation, and the obtaining of judgment and execution thereon as soon as practicable by the ordinary rules and practice of the court. 1 Brandt, Suretyship & G. § 101; Voorhies v. Atlee, 29 Iowa, 49, and cases cited. Unexplained delays of six, seven, and nine months have been held to discharge a guarantor (1 Brandt, Suretyship & G. § 101); and it is said in Salt Springs Nat. Bank v. Pratt, 135 N. Y. 423, that an unexplained delay •of four months in the commencement of an action, after the time when the necessity for its commencement has arisen, is not' due diligence.

Without, however, attempting to set any arbitrary time as the time within which suit must be brought, we are entirely certain that the facts in the present case show failure to prosecute legal remedies against the principal with due diligence. One note was due June 1, 1892, and the other June 1, 1894. There was nothing to prevent the commencement of an action on the first note as soon as it fell due. But no suit was commenced until September, 1893, a period of over fifteen months; and then no suit at law was com*235menced upon the note, but simply an action for foreclosure of the mortgage, -which could not result in a judgment for deficiency before the expiration of at least a year and two months from the time of the commencement of the action. So far as the first note is concerned, these facts are entirely insufficient, in the light of the authorities, to constitute due ■diligence. As to the second note, the facts are somewhat different, but the resifit is the same. It was declared due under the option clause in September, 1893; but no action, except the foreclosure action aforesaid, was ever commenced to collect it. In the light of the circumstances, the commencement of the foreclosure action cannot be called diligent prosecution of legal remedies. In fact, it was little, if any, better than no action at all. The plaintiff already had a prior mortgage upon the entire property in process of foreclosure and ready for judgment. The mortgage in question here was the second lien upon the property. Upon the sale under the first mortgage the surplus could be immediately applied for, and, when obtained, indorsed upon the- second mortgage, and thus the security would be exhausted. Thus, the foreclosure of the second mortgage was of no practical use. There is nothing in our statute which changes the well-known common-law rule that an action at law may be maintained upon the note concurrently with a suit to foreclose the mortgage. This was clearly the course which the mortgagee should have taken. No useful purpose could be attained by foreclosure of the mortgage, because the previous foreclosure would dispose of the mortgaged property and exhaust the security before it could be done under a judgment upon the second mortgage; hence the exercise of due diligence called for the prosecution of the personal remedy with all reasonable speed. Had it been so prosecuted even in September, 1893, judgment might have been obtained and execution issued in October, 1893, whereas the personal judgment for deficiency in the foreclosure action was not obtained *236until June, 1895, — more than a year and eight months later. Independent of all other questions in the case, and conceding that there was no lack of diligence prior to September, 1893, we think it clear that the failure to then prosecute a suit at law upon the notes was a failure to exercise due diligence in the prosecution of legal remedies against the principal, which discharges the sureties.

In this view of the case, the alleged requests of some o'f the defendants for further time in 1892 and earlier in 1893 are of no consequence.

By the Qowrt. — Judgment affirmed.