State v. Aetna Casualty & Surety Co.

140 Minn. 70 | Minn. | 1918

Hallam, J.

The facts applicable to this case are stated in the opinion in State v. Equitable Surety Company, which precedes this on page 48. Some of the issues are the same as in that case. Two other issues are raised:

1. Defendant was surety on the bond of Sperling to whom the timber permit was issued. The Equitable Company was surety on the bond of his assignee. The statute provides that, when a permit is assigned and another bond given by the assignee, the original bond remains in full force. G. S. 1913, § 5279. Defendant claims that the last bond becomes the primary security and that no suit can be maintained on the first bond until the second bond is exhausted. Whatever may be the relation between the sureties, they were both severally liable to plaintiff, and we know of no principle on which it can be said that the creditor must exhaust his remedy against one before he pursues the other.

2. Defendant demurred to the complaint on the ground of defect of parties, alleging that the Equitable Surety Company should be made a defendant. The Equitable Surety Company was obligated on a different bond as surety for the -performance of an obligation by a different principal. We have not before us the question whether the court might, under its broad power to bring in parties, order the Equitable Surety Company brought into the case, but only the question whether plaintiff’s complaint is demurrable because of its nonjoinder. Clearly it is not. Had the two surety companies been severally liable on the same bond plaintiff would have had the right to sue either one separately. G. S. 1913, § 7683. It had the undoubted right to sue separately these two companies liable on separate instruments.

Judgment affirmed.