22 Iowa 152 | Iowa | 1867
There is a large amount of testimony in the record, which, however, it is unnecessary to refer to in detail. The parties, not differing much, if any, as to the rule governing the rights of sureties when time is given by the creditor to the principal without the knowledge or consent of the sureties, contest its application to the facts of this case.
The bond was conditioned in the ordinary and required form '(Rev., § 3554), and was duly approved and filed. This section also declares that such a bond' is for the use of any person injured by the proceeding, and that a judgment for money recovered against the plaintiff shall go against the sureties on the bond.
By our law the sureties in a replevin bond must be treated as in court. It is a part of their undertaking that they will pay all costs and damages which may be adjudged against their principal; and they, by signing the same, covenant and agree that a judgment for money against the principal shall be rendered also against them.
Equity, we admit, will guard the rights of the surety; and still, the obligations he assumes must not be overlooked. Nor must we loose sight of the creditor’s rights; nor, again, forget, in the case supposed, that the parties are before the court, invoking its action, and to be bound by its orders. It is not as though, after judgment, the creditor should voluntarily, upon a valid agreement, give time to the principal; for then the sureties can no
Then, again, the principal would have been entitled to to a stay of execution for the full time given in this instance, by entering into a recognizance as provided in section 3293, Revision, unless the sureties had objected at the time judgment was rendered (§ 3300); and the very time which he might have thus obtained is ordered by the court, while the parties are all before it — the sureties as well as the principal — -and that, too, without objection. And as they could not afterward object in the one case, neither can they in the other.
These views render it unnecessary to consider whether the claim of Delashmutt to be discharged, is not even more untenable upon the facts than that of his co-sureties. And yet we may say, in conclusion, that, under the testimony, we cannot resist the conviction that he was* in legal contemplation, so in court, by an actual appearance (not in person, but by attorney) as equitably to still more effectually conclude him.
Let the judgment be
Affirmed.