Allison v. Smith

Caton, C. J. This was an action against the indorser of a promissory note, and to prove due diligence to collect the note of the maker, the plaintiff proved the institution of an action against the maker at the first term of the Peoria Circuit Court after the note matured, and that such proceedings were thereupon had, that over a year thereafter he obtained a judgment against the maker, and then issued executions to the counties of Peoria and Fulton, which were returned unsatisfied. The defendant then offered to show that the maker had plenty of property when the note matured, and that if the plaintiff had commenced his action before a justice of the peace who had jurisdiction of the amount and «might have acquired jurisdiction of the person of the maker by service in Peoria county, where he frequently was on business, the amount could have been collected of the maker before he became insolvent. This evidence the court ruled out, and we think improperly. We have often held that it is the duty of the holder to prosecute the maker with diligence, in order to hold the indorser responsible under our statute. If in truth the money could have been made by suing in a justice’s court and he neglected to sue there, but chose to sue in the Circuit Court, where from a press of business or other cause he could not obtain a judgment for a year or more, and until the maker became insolvent, it cannot be said that he prosecuted the maker with due diligence. Through his neglect the money was not collected of the maker, and he must bear the consequences of his own laches. The defendant should have been permitted to show the jury that by prosecuting before another court of competent jurisdiction, he might have obtained an earlier judgment and secured its satisfaction. The evidence should have been admitted. The judgment is reversed and the cause remanded. Judgment reversed.