Bostwick v. First National Bank of Norwalk

6 Ohio Cir. Dec. 682

• Court: Huron Circuit Court
• Decided: July 1, 1895
• Status: Published

Opinion

Haynes, J.

Tbe case of Isaac W. Bostwick v. The First National Bank is brought here upon a petition in error and is prosecuted for tbe purpose of reversing tbe judgment of tbe court of common pleas.

Tbe petition in tbe court below filed by Bostwick, sets up that he admits the recovery against him upon a cognovit note by tbe First National bank of Nor-walk, Obio, and be avers that the note was executed by himself and another party, and that he was surety upon the note and he seeks to have it set aside for several reasons, one of which is, he claims there was never any copy of the note presented to the court at the time the judgment was taken; and secondly, there was never any copy of the judgment note filed with the clerk of the court. Then the third defense he sets up is: “That this defendant never did alone, or jointly with the said Hyman ever execute any warrant of attorney authorizing the said Rowley, or any other person, to confess the judgment aforesaid, as the said defendant then well knew. This plaintiff further says that the said defendant, in obtaining the entry of said judgment, practiced fraud upon said court and this plaintiff in this, to wit: For that the said defendant well knew at the time it procured said judgment that this plaintiff was surety merely upon the note sued on in said action, and that the said Hyman was principal debtor thereon, and that this plaintiff was not bound thereon, and never had been bound thereon, except as surety for •said Hyman; that on the 25th day of September, 1893, and after said note became due and payable by the terms thereof, this plaintiff served a written notice upon said defendant requiring it to commence an action against said Hyman on ■said note forthwith as provided under section 5883 oí the Revised Statutes of Ohio, that if the said defendant did not within a reasonable time after said notice, proceed in the ordinary course of law to recover judgment against said principal, ■debtor for the money due on said note and to make by execution the amount, that this plaintiff relied upon said facts to exonerate him' from liability upon said note, yet the said defendant, well knowing as aforesaid all said facts concealed •the same from the court and obtained said judgment without a disclosure thereof. This plaintiff further says that there was, at the time said judgment was obtained :and is now, nothing due or payable upon said note from this plaintiff to the said defendant, and that this plaintiff had a full, ample and complete defense to said action as said defendant then and there well knew, which defense is of the nature ■following that is to say. ”

Then he sets up that he served notice upon the bank to commence an action on said note forthwith against said principal debtor for the money due on said note, or to make the amount hereof by execution against him, but that the bank failed to do it.

Subsequently the bank took judgment against Hyman and himself upon the note.

The answer, in what is called the second defense, says that:

“The defendant, for a second defense, says that said promissory note, upon which said judgment was rendered was for the sum of one thousand dollars, and was made and delivered to the defendant in this state; that said Uyman, at the time of, and ever since the sendee of the notice, in plaintiff’s petition alleged, was, and has been á nonresident of, and absent from this state, and a resident •of the state of Illinois.”

There is an amended reply to that answer in which the plaintiff says: “Andfur-ther replying, the said plaintiff says that he admits the facts pleaded in the second .defense of said answer, but says that at the time of the making and delivering of the note mentioned in said defense, the said Tyman was then and there, as defendant well knew, the principal debtor on said note, and was, as the defendant also well knew, a nonresident of said state of Ohio, and a resident of the state of Illinois, where he has ever since and now resides and that said note was accepted by said defendant with full knowledge of all said facts.”

Upon motion of the defendant, judgment was rendered for the defendant bank upon the pleadings, thus refusing to open and allow them to come in and make a defense, and practically confirming the former judgment.

The simple question raised here, and the real question raised on the issue is, whether or not, under the status of this case, the bank was compelled to proceed into the state of Illinois, or wherever it might find the principal judgment debtor, and commence an action and obtain judgment and endeavor to collect the money upon the note before it could have an action against the surety, or upon its failure to do so, that the surety might be discharged.

The statute reads as follows: Section 5883', “A person bound is surety in a written instrument for the payment of money, or other valuable thing, may, if a right of action accrue thereon, require his creditor, by notice in writing, to commence an action on such instrument forthwith, against the principal debtor; and unless the creditor commence such action within a reasonable time thereafter, and proceed with due diligence, in the ordinary course of law, to recover judgment against the principal debtor for the money or other valuable thing due thereby, and to make by execution, the amount thereof, the creditor, or the as-signee of such instrument, so failing to comply with the requisition of such surety, shall thereby forfeit the right which he .would otherwise have to demand and receive of such surety the amount due thereon.”

Going directly to the main question — it seems to us very clear that the true construction of this statute is, or must be, that a party is called upon only to proceed in the courts of this state to obtain judgment and to prosecute his claim to final judgment.

We think the law is very well settled by the supreme court of Indiana which has a statute almost like this. That court held, for reasons that we think are cogent and conclusive, that the defendant was not bound to go to another state,, or to follow the principal debtor out of the jurisdiction of the state of Indiana.

The decisions that are iound in 48 Indiana, at page 260, and volume 54, page 290, are very full and very clear decisions upon the question and state the law as clearly as we can state it.

The judgment of the court of common pleas will be affirmed and reasonable cause will be certified for filing petition in error. ■