Robinson v. Olcott

Walker, J. This was an action, by the assignee, against the assignor of a promissory note. It appears that suit was instituted against the maker, at the December term, 1857, of the Circuit Court. The summons was served in time for that term, no defense was interposed, or even an appearance entered by the maker of the note, yet the cause was continued, at that and the next succeeding term. Judgment by default was entered at the September term, 1858, and execution issued on the 18th day of October following, which was placed in the hands of the sheriff on the next day. It was returned on the 3rd of February, 1859, no property found, and unsatisfied. According to the uniform and numerous decisions of this court, this cannot be held to constitute diligence, by the institution and prosecution of a suit. The assignee, to have recourse on the assignor, must, if he relies on diligence by suit, institute legal proceedings against the maker, at the first term after the maturity of the note, and must prosecute it to judgment at the earliest period within his power, and then issue execution without delay. If he, through negligence, permits a term to pass without obtaining judgment, he cannot have recourse on 'the assignor. If he resorts to legal proceedings, he must prosecute them with vigor, so long as such proceedings promise to be available. There is no averment, in the declaration or proof in the record, that the further prosecution of the suit against the maker at the first term would have been unavailing. On the contrary, the evidence shows that a judgment then recovered could have been collected. No excuse is given for failing to take judgment by default, and as no defense was made, we feel at a loss to see that any can exist. There is an entire want of diligence in this case, to fix the liability of the assignor. Under the counts, containing an averment that a suit against the maker would have been unavailing, at the maturity of the note,- owing to his insolvency, there appear to be no grounds for a recovery. The evidence, we think, is clear and abundantly satisfactory, that the maker then, and for a long period of time afterwards, was in possession of a large amount of property, liable to execution; much more than enough to have satisfied this judgment. He owned both real and personal property, either of which was amply sufficient to have paid the note, until as late as January, 1858, when he traded a tavern stand for a stock of goods which he held in the county until in August of that year. Had the judgment been obtained, as it might have been, at the term to which the suit was brought, this property could have been subjected to its payment. Then these counts are not sustained by the evidence, but the converse of the proposition is proved. It would be manifestly unjust, to permit the assignee to hold the note, refuse to employ the requisite means for its collection until the maker, with ample means in his hands, becomes insolvent, and then hold the assignor liable. By the assignment the note becomes his, with the entire right to control its collection, and the assignor has no power to act, and unless the assignee is held to due diligence, he would be at the mercy of the assignor. This the law will not permit. The judgment of the court below is reversed, and the cause remanded. Judgment reversed.