16 Mont. 85 | Mont. | 1895
Since the decision of the motion in this case (It Mont. 78, 35 Pac. 227) the case stands upon an appeal
It further appears by the complaint in this case that plaintiff demanded from defendants payment of the judgment. This the answer denies. This, however, is not an issue. The demanding of the payment was not a material allegation in the complaint. There need be no demand for the payment of a judgment before bringing action against the judgment debtor and his sureties on the bond. (Brandt on Guaranty and Suretyship, §§ 1, 97, 197, 198; Coburn v. Brooks. 78 Cal. 443, 21 Pac. 2; Lomme v. Sweeney, 1 Mont. 584; Hoskins v. White, 13 Mont. 70, and cases cited; Pieper v. Peers, 98 Cal. 42, 32 Pac. 700; State v. Biesman, 12 Mont. 13.) In the case of Pinney v. Hershfield, 1 Mont. 367, there is a dictum, which is not necessary to the decision of the case, which it is claimed holds the contrary of the View now expressed. That, dictum consisted of a quotation from Parsons on Contracts, but by a reference to that author it is found that his language referred to a subject different than that here before us.
Appellants claim that there is another issue in the pleadings, as follows: The judgment in the former case of Donovan v. Nelson was in favor of defendant for his costs, taxed in the sum of $143.70. The defendants in this case set up that these
Affirmed.