Irwin v. Helgenberg

Worden, J. On the 3d of May, 1861, one Jeffers, as principal, and the appellants, as sureties, executed a promissory note to Howard, who indorsed it to Helgenberg. On the 22d of August,. 1861, Helgenberg recovered a judgment by default against the appellants upon the note, process in that behalf being returned not found as to Jeffers. On .the 6th of December, 1861, the appellants notified Helgenberg, in writing, to sue Jeffers, the principal on the note. Helgenberg, not having done so, and pressing the appellants with an execution upon the judgment, the appellants filed this complaint to restrain him from the collection, alleging the above facts, and that Jeffers was a resident, &c., and solvent. A demurrer was sustained to the complaint, and final judgment rendered for the -defendant. The ruling helow, we think, was correct. Our statute, which seems to govern the case, provides, that “any person, hound as surety upon any contract in writing for the payment of money, or the performance of any act, when the right of action has accrued, may require, by notice in writing, the creditor or obligee, forthwith, to institute an action upon the contract. If the creditor or obligee shall not proceed, within a reasonable time, to bring- his action upon such contract, and prosecute the same to judgment and [108] execution, the surety shall be discharged from all liability thereon.” 2 G. & H. 306. D. Moss, for the appellants. The note, which appears in the record, is a joint note, and it is by no means clear that Helgenberg could maintain any action upon it against Jeffers, having taken his judgment upon it against the appellants. Vide, on this point, Nicklans v. Roach, 3 Ind. 78, and Archer v. Reiman, at the present term. But, however this may be, it seems to be clear’, that the case is not within the terms of the statute, nor is there any equitable ground shown for interfering with the collection of the judgment. Helgenberg had brought suit upon the note long before he was notified to sue Jeffers, and had recovered judgment against those upon whom he got service of process. He had already done all that could be required of him. He could not be required to bring another suit against Jeffers, before he could avail himself of the judgment he had already obtained. The statute does not contemplate a notice to be given to sue, in cases where judgment has been already obtained against the surety, and, in default of suit, to discharge the surety. The language is, if the creditor, &c., shall not proceed, &c., to “bring his action upon the contract,” &c., “the surety shall be discharged from all liability thereon;” that is, from all liability on the contract. This language is not at all applicable to a ease where there is already judgment against the surety, for the contract is then merged in the judgment. There is no particular hardship in requiring the appellants to pay the judgment against them; for, if they were the sureties of Jeffers, and if he be a resident and solvent, they have a plain and adequate remedy against him. There may be, and undoubtedly are, many cases in which a surety is entitled to relief, after judgment against him, but there must be some equitable ground therefor, which, as before remarked, does not appear in this case. Per Curiam. — The judgment below is affirmed, with costs.