Peters v. Linenschmidt

<p>Per Curiam.</p> <p>1, Bills and Notes — Sureties—Notice to holder to me principal — Due diligence— Rights of surety. — Under the statute concerning sureties and their discharge (Wagn. Stat., 1302 et seq.) the creditor who has been notified, as provided in section 1, must do two tilings ; first, he must commence suit against the principal debtor within thirty days ; second, he must prosecute his suit with due diligence, in the ordinary course of law, to judgment and execution, or else the surety, who may be joined in the action with his principal, will be discharged. Due diligence in the prosecution of the suit is just as essential as commencement within the time limited, in order to fix the liability of the surety after such notice. If the creditor brings such suit and fails to obtain service on the principal at the first term, he should take out an alias summons to the next term, and then under Wagn. Stat., (1010, $ 20, ) he would be entitled to judgment against the surety in case service was not had on the principal, unless the surety should consent to further delay.</p> <p>Per Napton, Judge, Dissentng.</p> <p>1. Bills and Notes — Surety, action against. — The creditor, under the statute, has a right to sue both principal and surety ; and when the summons against the principalis returned mo» «sí, he has a right to dismiss, as to the principal, and proceed against the surety alone.</p>