7 Neb. 414 | Neb. | 1878
The defendant in error was surety for Thomas J. Caution on a promissory note given to the Lancaster County Bank, on which judgment was duly rendered by the probate court for $191.16 and costs.
Within the time allowed by law, and for the purpose of staying execution, the plaintiff's in error appeared before the probate judge and entered into an undertaking, as follows: “ In pursuance of the statute in such case made and provided, J. H. McMurtry and J. S. Gregory, for the purpose of staying the above judgment, do hereby promise and undertake to pay the above judgment, interest, and costs, and the costs that may accrue.
“(Signed) J. H. McMurtry,
John S. Gregory.”
In his petition, the defendant in error, after a recital of the facts showing the standing of the parties with respect to the original suit, and to each other, alleges that the stay was entered at the sole request of Cantlon, the principal debtor, who then had considerable property, both real and personal, in his own name, so that, but for the stay granted as aforesaid, the judgment would have been collected out of the same; and that a part of said property or real estate was by him conveyed to the said McMurtry at the time, upon consideration in whole or in part that they should so become bound for the payment of said judgment; which real estate the said defendant still owns and holds under said conveyance. And it is further charged “ that during the period of stay of the said execution the said Cantlon became and still is utterly insolvent, and has become a non-resident of the state of Nebraska, and has no property therein.”
By their amended answer the plaintiffs in error admitted the execution of the note, the recovery of judgment thereon, and its payment by the defendant in error. They also admitted the insolvency of Cantlon, but denied that he was solvent when the judgment was ren
The case being tried to the court, without a jury, there was a special finding of facts, “ that the defendants, John S. Gregory and J. H. McMurtry, became sureties for stay of execution on said judgment at the sole request of Robert J. Oantlon, who was the principal judgment debtor therein, as alleged in said petition.” Upon these facts alone, there being no finding as to Cantlon’s solvency, nor as to whether the plaintiffs in error were indemnified for becoming sureties, as alleged in the petition, the court found as its conclusion of law, “ that, in equity, the plaintiff was entitled to be subrogated to all the rights of the judgment creditor,” and to recover from the plaintiffs in error the full amount which he had paid in satisfaction of the judgment, together with interest and costs; and so the judgment was rendered.
Such is the case as made by the record, and it presents two questions: First. Whether the plaintiffs in error, by executing the instrument on which the stay of execution was granted, became bound to pay the judgment? and, secondly, whether, if such liability were incurred, the original surety on paying the judgment could require them to make good to him the amount paid ? From the view we take of the first question, that is decisive of the case, and we shall therefore consider it alone, leaving the second, concerning which there is some conflict in the authorities, until a necessity for its decision shall arise.
At the time this stay was entered the only authority for staying executions on the judgments of probate courts was found in Sec., 17 of “An act concerning the organization, powers, and jurisdiction of probate courts,” passed March 3, 1873. This section provides that: “ Any party against whom a judgment is rendered, on
The instrument given in evidence on the trial, and on which the stay was allowed by the probate judge, fell far short of answering the requirements of the statute. It was not a bond executed by the defendants to the plaintiff in the judgment, but it was merely an undertaking to pay the judgment, interest and costs, executed by sureties alone. Had the judgment creditor been a party to this undertaking by agreeing to accept it as the consideration for delaying execution for some definite time, the transaction, although not amounting to a statutory stay, could very likely have been upheld and enforced as a common law contract. The enforcement of a statutory stay does not depend upon the assent of the judgment creditor; but, to entitle a party to it, he must at least conform substantially to the requirements of the
The judgment of the court below is reversed, and the cause remanded.
Reversed.