54 Neb. 461 | Neb. | 1898
This suit was brought in the court below by the American Exchange National Bank of Lincoln against Lou L. E. Stewart and R. A. Stewart on a promissory note for $1,000, bearing date May 15, 1893, due in ninety days, with interest at ten per cent per annum from date until paid. Lou L. E. Stewart’ made default. R. A. Stewart for answer alleged that he signed the note as surety merely, and that, without his consent, plaintiff, for a valuable consideration received from Lou L. E. Stewart, extended the time of payment of the note. The bank re
One ground urged for reversal is that the defendant surety was, by the pleadings, entitled to recover judgment, which proposition is unanswerable. Under section 134 of the Code of Civil Procedure every material allegation of new matter contained in the answer, not put in issue by a reply, must be taken as true. (Dillon v. Russell, 5 Neb. 484; Williams v. Evans, 6 Neb. 216; Payne v. Briggs, 8 Neb. 75; Consaul v. Sheldon, 35 Neb. 247; National Lumber Co. v. Ashby, 41 Neb. 292; Van Elten v. Kosiers, 48 Neb. 152; Scofield v. Clark, 48 Neb. 711; Culbertson Irrigating & Water Power Co. v. Cox, 52 Neb. 684; Hartzell v. McClurg, 54 Neb. 313.) Two defenses were -well pleaded in the amended answer — the release of the surety by the payee extending the time for the payment of the note to the principal maker, and the surrender and release of collaterals held as security for the payment of the note. By the plaintiff failing to reply to the amended answer, the second defense, under the statute and authorities, must be regarded as' confessed. It is suggested, in argument, by counsel for plaintiff below that the reply to the original answer should be treated as a reply to the amended one. Possibly it might have been thus regarded had it been refiled as a reply; but without such refiling it certainly cannot be so considered as to the new défense- which was not interposed in the first or original answer. An amended answer having-been filed, plaintiff had the undoubted right to plead over if it so desired, or to stand upon its reply previously
It is insisted that the defendant waived a reply by trying the cause as if one had been filed to the amended answer; and Western Horse & Cattle Ins. Co. v. Timm, 23 Neb. 526, and other authorities
Section 440 of the Code of Civil Procedure controls in this case. It provides as follows: “Where, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party.” Plaintiff by failing to reply to the amended answer admitted the bank voluntarily surrendered to the principal maker collaterals given to secure the note in suit, without the consent of the defendant surety, which, to the extent of the value of such collaterals, released him from liability. (Bronson v. McCormick Harvesting Machine Co., 52 Neb. 342.) The verdict being for the face of the note in controversy with interest, for the reason stated, the judgment is reversed and the cause remanded.
Reversed and remanded.
Meader v. Malcolm, 78 Mo. 550; Hensler v. Cannefax, 49 Mo. 295; Gray v. Worst, 31 S. W. Rep. [Mo.] 585; State v. Phillips, 38 S. W. Rep. [Mo.] 931; Hopkins v. Cothran, 17 Kan. 173; Wilson v. Fuller, 9 Kan. 176; Quimby v. Boyd, 6 Pac. Rep. [Colo.] 462; Jerome v. Bohn, 40 Pac. Rep. [Colo.] 570; McAlister v. Howell, 42 Ind. 16; Helton v. Wells, 40 N. E. Rep. [Ind.] 930; Comer v. Way, 19 So. Rep. [Ala.] 966; Minard v. McBee, 44 Pac. Rep. [Ore.] 491; Louisville & N. R. Co. v. Copas, 26 S. W. Rep. [Ky.] 179; Killman v. Gregory, 65 N. W. Rep. [Wis.] 53.