Phillips v. Riley

Richardson, Judge,

delivered the opinion of the court.

The plaintiff commenced a suit on the 21st of August, 1857, on a promissory note, executed by Eichard Phillips as principal, and the defendant Eiley as his surety, for four *387 thousand dollars, due the 1st of February, 1856. There was no service on Phillips, and the plaintiff discontinued as to him, but the summons was served on the defendant the day it issued. The only defence set up was that the defendant on the 8th of July, 1857, had caused a notice to be served on the plaintiff requiring him to commence suit immediately against the principal in the note, and that he had neglected to commence suit within thirty days after the notice. The case was tried by the court without a jury. The only evidence offered on either side was the note, the notice and service thereof, the summons in the cause, and the testimony of the defendant himself that the principal in the note was a non-resident of the state ; and on these facts judgment was rendered for the defendant.

.There is no conflict in the testimony, but a total absence of any proof whatever to support the judgment. The notice of the 8th July, did not simply require the plaintiff to commence suit on the note, but that suit should be commenced against Richard Phillips, the principal, who was a non-resident of the statei The defendant had no cause to complain that he was not sued sooner, and he could not by his notice compel the plaintiff to go out of the state to sue the principal. (Hughes v. Gordon, 7 Mo. 297 ; Perry v. Barrett, 18 Mo. 180 .) There could be no dispute about the facts, for they are very few and simple, and the error of the court was clearly in the application of the law to the facts.

We all agree in‘the law of the case and that the judgment was for the wrong party; but Judge Scott thinks that nothing was saved by the plaintiff to authorize the interference of this court.

Judge Napton concurring,

the judgment will be reversed and the cause remanded.