Anderson v. J. S. Lithgo & Co.

64 Tenn. 603

• Court: Tennessee Supreme Court
• Decided: December 15, 1875
• Status: Published

Opinion

Freeman, J.,

delivered the opinion of the court.

This is a' petition for certiorari and supersedeas to-quash an execution issued against a stayor of a judgment. It was dismissed by the Circuit Judge for want of merit on its face.

The grounds set forth for relief on the part of the stayor are, substantially, that after the stay éx-pired the principals were good, the money might have been made out of them, and that he notified the attorney of the plaintiff to make the money, and pointed-out property subject to levy out of which the money could have been made; that after this an execution was issued, and returned by the officer “not levied,, by order of plaintiff’s attorney.” The parties, have-since become insolvent.

This is no ground for relief in a court of law, if indeed it be anywhere. Mere delay will not release a surety. In a case like this, the party could have saved himself from all danger by complying with, his •duty as stayor — paying the debt and taking a judgment at once over against his principals, on which no stay of execution could have been had. Code, sec. •3067. His failure to do so and peril results from his own wrong, and he must in this proceeding take the consequences.

Affirm the judgment.