Hershler v. Reynolds

Wright, J. There is a large amount of testimony in the record, which, however, it is unnecessary to refer to in detail. The parties, not differing much, if any, as to the rule governing the rights of sureties when time is given by the creditor to the principal without the knowledge or consent of the sureties, contest its application to the facts of this case. The bond was conditioned in the ordinary and required form '(Rev., § 3554), and was duly approved and filed. This section also declares that such a bond' is for the use of any person injured by the proceeding, and that a judgment for money recovered against the plaintiff shall go against the sureties on the bond. [155] 1. principal dScharge™: consent. The law is that any act of the creditor by which he precludes himself from demanding performance of the principal, or entitles the latter to claim for any ^me an exemption from performance, will inure as a discharge of the liability of the surety. 2 Lead. Cas. in Eq., 380, and the many cases there cited. Of course, if the security relies upon an agreement, it must be a valid one; one founded upon a sufficient consideration. No legal proposition can be regarded as better settled. But it is just as well settled that the surety will not be discharged, if time is given with his consent, or if he should subsequently affirm the same. 2 Lead. Cas. in Eq., 363, and authorities. 2. _ judgment. These rules, too, though applicable more particularly to obligations resting in contract merely, are still to be observed and enforced after the contract has passed into judgment. This is the decided current of the recent decisions (Lead. Cas., supra, 385), and has been so ruled in this State. Chambers v. Cochrane, 18 Iowa, 159, and cases there cited. 3. _ sureties in replevin bond. In this case there was a judgment; and the claim is, that, as a part of the terms of settlement, and as a condition thereto, stay of execution was given without the consent of the sureties. [Recognizing in all their weight the rules above stated, our views of this case may be briefly stated. By our law the sureties in a replevin bond must be treated as in court. It is a part of their undertaking that they will pay all costs and damages which may be adjudged against their principal; and they, by signing the same, covenant and agree that a judgment for money against the principal shall be rendered also against them. [156] 4. _¿taring pendency of suit. [155] The defendant iu replevin, instead of, as formerly, being put to the costs and delay of an action upon the bond, if [156] he succeeds, is entitled to judgment at once. this the sureties consent to, without petition or other notice. The jurisdiction of the court over •them for this purpose, its power to render the judgment, is undoubted and undeniable. In the absence of exceptional circumstances, they are not entitled to any other day in court. Thus, in the absence of fraud or collusion between their principal and the defendant, or some like equitable circumstance, they will be concluded by the amount of the judgment, by the line adopted in the prosecution of the case; and whether their principal is delinquent or negligent in the prosecution of his demand, cannot, after judgment, avail them. 5. _ judgment. And while we do not say that they are concluded by every agreement or arrangement which may be made in relation to the case, and especially whore made after ju¿)gment (a point not necessary now to determine), we are of the opinion that, being in court, if, by its judgment, an order is made settling and fixing the rights of the parties, without objection on their part, they are concluded by it. In other words, if their principal consents to judgment, and tbe order follows, they are concluded. If he consents upon condition that time is given, and the court orders the judgment giving the time, they are alike bound.- This seems to us to accord with the provisions of the statute and not to contravene the rights of the surety. Equity, we admit, will guard the rights of the surety; and still, the obligations he assumes must not be overlooked. Nor must we loose sight of the creditor’s rights; nor, again, forget, in the case supposed, that the parties are before the court, invoking its action, and to be bound by its orders. It is not as though, after judgment, the creditor should voluntarily, upon a valid agreement, give time to the principal; for then the sureties can no [157] longer be regarded as in court. Nor, we may be allowed to say, is it like tbe case, where the agreement for time forms no part of the judgment of the court. The order for time is’ as much a part of the judgment as that which finds for the creditor. The right and power of the court to make such an order is as clear, in the absence of objection by the surety, as to enter the judgment. It is but an incident, a consequence following the judgment in the particular case. And we do not see why the sureties might not as well claim that they were entitled to relief because the principal allowed judgment to go for too much, or did not contest the case sufficiently, or. upon some other similar ground. In a word, they are in court, do not object, and are therefore estopped. Then, again, the principal would have been entitled to to a stay of execution for the full time given in this instance, by entering into a recognizance as provided in section 3293, Revision, unless the sureties had objected at the time judgment was rendered (§ 3300); and the very time which he might have thus obtained is ordered by the court, while the parties are all before it — the sureties as well as the principal — -and that, too, without objection. And as they could not afterward object in the one case, neither can they in the other. These views render it unnecessary to consider whether the claim of Delashmutt to be discharged, is not even more untenable upon the facts than that of his co-sureties. And yet we may say, in conclusion, that, under the testimony, we cannot resist the conviction that he was* in legal contemplation, so in court, by an actual appearance (not in person, but by attorney) as equitably to still more effectually conclude him. Let the judgment be Affirmed.