Vandergazelle v. Rodgers

57 Mich. 132 | Mich. | 1885

Sherwood, J.

The plaintiff brought an action on the case against George Cooper in the circuit court for the county of Muskegon, laying her damages. The suit was commenced by capias, and the defendants, on the 28th day of August, became special bail for Cooper to pay such sum as might be awarded against him in the suit, or that he should surrender himself on execution in case of default in payment. At the April term of court judgment was rendered against Cooper for the sum of $573.50. On the 21st day of November, 1883, a fi. fa. was issued upon the judgment against Cooper, returnable the 12th day of December following, and was returned nulla bona on the 14th day of December thereafter. On the 19th day of December, 1883, a ca. sa. was issued against Cooper and delivered to the sheriff of Muskegon county, returnable January 8, 1884, at which time the sheriff made return thereof non est inventus. After these proceedings the said Cooper, failing to pay the judgment, or surrender himself, or be surrendered by his bail, the plaintiff brought this suit against the defendants, who. were Cooper’s sureties.

The declaration sets forth the above facts, and claims the right to recover the amount of the judgment obtained against Cooper, viz., $573.50. To which declaration the defendant interposed a special demurrer, assigning eight causes, as follows : “ First, it is not stated and shown in and by said declaration that the said defendants had notice of the rendition of said judgment; or second, that said defendants had any notice of the issuing or return of said execution . against the goods and chattels, and for want thereof against the lands and tenements, of the said Cooper; third, that said defendants had any notice of the issuing or return of said execution against the body of said Cooper; fourth, it is not in' and by said declaration alleged, stated, or shown that the said execution against the goods and chattels, etc., was issued within a reasonable time after the rendition of said judgment; or fifth, that said execution against the body of said Cooper was issued within a reasonable time after the rendition of said judgment against said Cooper; or sixth, it is not shown in and by said declaration that the said plaintiff, or her attorney, used due diligence to recover the amount of the said judgment of or from said Cooper ; or seventh, to take the body of said Cooper in execution ; eighth, it is not shown in and by said declaration that the said plaintiff, or her attorney, ever made any demand upon the said defendants, or either of them, for any sum of money sought to be recovered in this suit before said declaration was filed.”

The demurrer was argued before Judge Russell, who sustained the demurrer principally upon the ground “ that the plaintiff’s declaration does not well and sufficiently state the reason for the delay in issuing execution, and the diligence used by the plaintiff with reference to the collection of his execution.”

The record shows that about seven months elapsed after the rendition of the judgment before the fi. fa. was issued. The delay is unexplained, and is claimed by defendant’s counsel as showing such a degree of negligence as to prevent the plaintiff’s right to recover. We do not agree with counsel upon this point. We do not think, as a matter of law, we can say a delay of eight months, in the absence of any showing that the defendants on that account have been specially injured thereby, is sufficient to defeat the plaintiff’s cause of action. There is no statute attaching such consequences to the delay, and we know of no practice requiring it.

The declaration shows the proper executions issued and returned, and in the order required by statute, precedent to the bringing of plaintiff’s action in this case. It was not necessary for the plaintiff to give the defendants any special notice of the judgment rendered against Cooper, nor of the issuing and return of the execution upon the same, before bringing this suit. When they became his bail, they had notice of the pendency of the suit and the extent of the liability they assumed, and they were ■ required to take notice after that at their peril of the arrival of the contingency when the plaintiff’s right accrued to enforce the liability against them. No ■demand was required to be made by the plaintiff, her agents or attorneys* upon the defendants for the satisfaction of her ■claim before bringing her suit therefor against them. If‘ the defendants wished to avoid suit by payment, it was their duty to discharge their obligation as soon as the plaintiff’s right of action accrued thereon, and no demand was necessary.

The judgment at the circuit must be reversed, the demurrer overruled, and the defendants allowed the usual time for pleading. The record will be remanded, and the plaintiff allowed her costs.

The other Justices concurred.