65 Neb. 250 | Neb. | 1902
This is an appeal from an order made by the district court of Sherman county on the 19th day of December, 1899, vacating and setting aside a sale of real estate theretofore made, and setting aside, vacating, satisfying and discharging a judgment or decree entered by the district court of that county on the 25th day of August, 1898. The record in the case is in such a condition as to make it almost, impossible to determine exactly what the trial court did, but, as nearly as we are able to ascertain from the record, the proceedings had, they are about as follows: On the 1th day of April, 1895, Sherman county recovered a judgment for the sum of $1,912.78, upon a depository bond given by the People’s State Bank of Litchfield, to secure a deposit of county money. The judgment ran against the .bank as principal, and against Albert T. Nichols, John H. Wilson, Edwin Harper, Lawrence P. Nissen, W. H. Chapman, Henry Lewis, John Greenhalgh and Felix Eckhout, as sureties. Upon this judgment execution appears to have been issued and returned unsatisfied for the want of property. Some time later, the date
It seems quite clear from the portion of the decree above quoted that two things were effected by the order complained of: First, the vacation and setting aside of the sale of the land of Edwin Harper, to which, so far as disclosed by the record, no objections had been made; and, second, the cancelation and annulment of the creditors.’ bill decree in so far as it affected the rights of Edwin Harper and E. N. Harper.
Two reasons are urged in briefs of counsel for appellant why the decree of the trial court should be held erroneous and the case reversed: (1) The court had no jurisdiction to make the order canceling and vacating the decree many years after its rendition upon motions such as those made by appellees Harper; and (2) that the action of certain judgment creditors taken in connection with the county board of Sherman county, did not operate to release, or in any manner affect, the liability of Edwin Harper or E. N. Harper, as fixed by the decree.. So far as we can gather from the record, it appears to have been the theory of, the trial court that the action taken by the county board was of such a nature as to release appellees Harper from the decree in the creditors’ bill case, and to render the sale made by the sheriff of their land under that decree illegal, and that for that reason the sale should be vacated and
In the second place, it is contended that the order made by the county board, upon an agreement of certain of the sureties therein named, was insufficient to operate as a release or discharge of Edwin Harper and E. N. Harper from liability under the decree. The rule seems to be that giving time to one of several sureties, even upon a valid consideration, does not have the effect of discharging the other sureties. This rule is based upon 'the principle that their liability is equal, and that extension of time given to one does not change the liability, or in any way prejudice the rights of the other, and that therefore he is not released or discharged from liability. Pingrey, Suretyship & Guaranty, sec. 120. Draper v. Weld, 13 Gray [Mass.], 580.
Again, it is clear that in no event would appellee Harper be released from liability on the decree in question, for the reason that the county received no consideration for enter
It is not disclosed that the money was ever paid, although it is probably true that the first $500 mentioned was paid, and the record discloses that the sale of the land mentioned in the resolution was vacated in the district court by agreement. The making of this agreement did not have the effect of releasing Edwin Harper from liability upon either of the judgments in controversy. No objections were filed to or urged against the validity of the sale as affecting the real estate of Edwin Harper, and, so far as we are able to determine, the sale and all proceedings leading up to it appear to be valid, and the order of the trial court vacating and setting aside the sale is erroneous.
For the reasons pointed out, we recommend that the judgment of the trial court canceling and setting aside the decree in the creditors’ bill suit against Edwin Harper
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed and remanded.