29 Iowa 49 | Iowa | 1870
“ $142.50. Sixty days after date the medical department of the Iowa University promises to pay John |C- Atlee or order, $142.50, value received. August 17, 1858.
“J. C. HUGHES, Dean"
“ I assign the within to S. F. Voorhies, and guarantee the collection of the same and waive notice.
“JOHN C. ATLEE/
Suit on said note was commenced August 26, 1859, against said Atlee as well as said medical department; that on February 5, 1861, judgment was rendered against said medical department for $162.17, but by some mistake or oversight no order or judgment was made by the court in regard to John C. Atlee, and the case was accidently dropped from the docket, but afterward, on motion of plaintiff, was replaced ; that said judgment against said medical department has never been paid; that said medical department was insolvent at the commencement of said suit and still remains so ; that two terms of court were held in Lee county between the maturity of said note and the commencement of said suit.
Upon these facts the court rendered judgment for the defendant; and this is assigned as error. It may be conceded, as claimed by appellant’s counsel, that by the writing indorsed upon the note the payee of the note and maker of said endorsement, John C. Atlee, assumed the obligations oí both an indorser and a guarantor of collection. But the facts found by the court do not show
In this case the plaintiff failed to institute his suit until the third term of court, allowing two terms to pass without suit. No facts are shown to excuse this delay— this want of due diligence. But it is shown that the maker of the note was insolvent at the commencement of the said suit and still remains so. This excuse fails in its sufficiency, for that it does not show that the maker was insolvent at the maturity of the note and so continued up
. Affirmed.