34 Iowa 413 | Iowa | 1872
The judgment of the court below is based upon the facts of the insolvency of the maker of the note, and that a suit, at any time, would have been unavailing, which were found upon the evidence objected to by defendant. The court did not find that due diligence had been used in the prosecution of an action. The statute of Illinois provides that, if the suit would have been unavailing, or the maker of the note has absconded or left the State, recovery against the indorser may be had, as if the diligence required had been used.
In the petition, the plaintiff alleges the diligence in the prosecution of the action, reqrrired by the Illinois statute, as the foundation of his right to recover against the indorser. He is permitted to show, without any averment of the kind in his petition, that such diligence would have been unavailing, and, upon the finding of this state of facts, the court renders judgment against defendant.
The evidence did not correspond with the allegations of the petition, and the fact found by the court upon which
No principle of law is better understood than the one which the proceedings in this case violate, namely, the evidence must correspond with the allegations of the pleadings, and the rights of the parties must be determined upon the facts in issue. Lumbert & Co. v. Palmer, 29 Iowa, 104.
Counsel for appellee insist that the petition, in stating that an execution, issued upon the judgment set out therein, was returned, no property found, sufficiently alleges the insolvency of the maker of the note. All that is shown by such fact is that, at the time the execution was returned, the maker of the note was insolvent. It does not show that at the maturity of the note, or at any time thereafter, except at the particular time the execution was returned, the defendant’s condition was such that a suit against him would have been unavailing.
Other questions raised by counsel need not be considered, as the judgment, for the error above pointed out, must be
Reversed.
