Decided 19 April, 1897.
On Motion of Surety to be Eelieved.
[48 Pac. 1118.]
Per Curiam.
1. In this case the defendant perfected an appeal from a decree of the circuit court rendered against him in a suit for foreclosure, and W. H. Downing became his surety upon the undertaking for the appeal. Downing now asks leave to intervene in his own behalf, and moves the court to require the appellant to file a new [449] undertaking and thereby relieve him from further liability. He grounds the application upon certain alleged false and fraudulent representations of the appellant whereby he was induced to sign the undertaking. The alleged facts are set forth by affidavit, and the appellant has taken issue with him upon every material point by counter affidavits, to which the surety replied by other affidavits, so that-there is presented here an issue of fact touching the alleged fraud. It is urged by the appellant that the proceeding is unknown to the law, and not well taken, but however this may be, and without passing upon that question, we do not think the surety has made such a case by the preponderance of the evidence as to entitle him to the relief sought. The motion will therefore be overruled. Motion Overruled.
Free access — add to your briefcase to read the full text and ask questions with AI