Simonds v. Heinn

IIowe, J. John I-Iaeberle bas appealed from a judgment, upon a rule condemning liim as surety upon tbo appeal bond of Mrs. Mary Ileinn. He contests bis liability upon tliveo grounds. First — Because tlie plaintiff took a rul® in tlie lower court to set aside tlie appeal of Mrs. Ileinn, on the ground that the surety (Haebcile) was not solvent, and caused tho rule to be continued until a day later than the return day of tlie appeal; and that Mrs. Heinn, “ fearful of not establishing the solvency of her surety failed to file tho [297] record,” and the appeal was thus abandoned. He contends that in, this regard the plaintiff committed a wrong of which he can not take advantage. We hardly think that such a point will be seriously insisted on. The proceeding to set aside the appeal had been practically waived by the continuance complained of, and if the appellant-abandoned her appeal through fear of not being able to establish the solvency of her surety, the consequences of such unnecessary alarm ought not to be visited on the appellee. Second — Because the surety was discharged by agreement of plaintiff. We observe, in the record, a rather distressing conflict of testimony on this point, but a careful examination of the evidence satisfies us that the court below did not err in concluding that the surety failed to-make out this defense. We find no consideration for this alleged discharge. If it existed at all, it must have been a gratuitous remission, and though such a remission is perfectly valid, it is somewhat uncommon in the experience of business life. Certainly, in a case like the-present, where the litigation has been jirotracted and bitter j where-the principal debtor has become bankrupt, and the surety is perfectly solvent, it is highly improbable that the plaintiff should remit a valid and well secured claim. The improbability is not removed by the evidence. Third — Because the writ of fieri facias issued by the plaintiff prior to the taking of the rule was returned before its return day, and the proper demand was not made thereunder. The proper demand was made, it appers by the sheriff’s return, first by the defendant, and next by the plaintiff’s counsel. Lynch v. Bar, 10 Rob. 136; Levois Thibodaux, 13 An. 264. But the writ was returned two or three days before its term expired, and in an ordinary case this fact might be fatal to the plaintiff’s proceeding. 10 Rob. 136. But in this instance it, appears that, before the rule was taken, the principal debtor had gone into bankruptcy; that further pursuit of her property by means of fieri' facias was impossible, and that the immediate liability of the surety was thus fixed. Under such circumstances, the reason of the rule laid down in 10 Rob. ceases. And the doctrine of the cases of Alley v. Hawthorn, 1 An. 122, and Wogan v. Thompson, 10 An. 284, applies,, that if a creditor can not take out an execution, or proceed under one-which has been taken out, by reason of a change in the con dition of the judgment debtor’s estate, which preventsits being reached by that-process, no further ceremony on the creditor’s part is necessary before a rule can be properly taken against the surety. For these reasons it is ordered that the judgment be affirmed, with-costs.