Jones v. Tincher

• Decision Date: 11 December 1860
• Parties: Jones and Another v. Tincher and Another
• Court: Indiana Supreme Court

15 Ind. 308

Jones and Another v. Tincher and Another

Supreme Court of Indiana

December 11, 1860

APPEAL from the Tippecanoe Circuit Court.

The judgment is affirmed, with 5 per cent. damages and costs.

Huff and Jones, for appellants.

H. W Chase and J. A. Wilstach, for appellees.

OPINION

Davison, J.

The appellees, who were the plaintiffs, brought this suit against Howard and Jones, upon a promissory note for the payment of $ 1,395. Howard was called and regularly defaulted. Jones answered the complaint alleging, in his answer, that he executed the note as Howard's security, and that on the day it was given, viz, March 20, 1858, the plaintiffs, to secure the payment of the note by Howard, the principal therein, took from him and his wife, Jane Howard, a mortgage on certain real property (describing it), which mortgage was executed and received concurrently with the execution of the note. And the defendant avers that Howard is utterly insolvent, and that without the security of the mortgage, he has no means that can be reached by execution, &c. Defendant therefore prays that the plaintiffs be required to make said Jane Howard a defendant, &c., and to proceed for the foreclosure of their mortgage, and to exhaust their remedies against Howard and wife upon the mortgage before execution shall be taken against this defendant, &c. Demurrer to the answer sustained, and final judgment given for the plaintiffs. The sustaining of the demurrer is the only error assigned on the record.

The appellants, in support of their answer, rely upon §§ 674, 675, and 676 of the Practice Act. These sections provide: 1. "When any action is brought against two or more defendants upon a contract, any one or more of the defendants being surety for the others, the surety may upon a written complaint to the court, cause the question of suretyship to be tried and determined upon the issue made by the parties at the trial of the cause, or at any time before or after the trial, or at a subsequent term; but such proceedings shall not affect the proceedings of the plaintiff. 2. If the finding upon such issue be in favor of the surety, the court shall make an order directing the sheriff to levy the execution first upon, and exhaust, the property of the principal, before a levy shall be made upon the property of the surety; and the clerk shall indorse a memorandum of the order on the execution. 3. When any person being surety in any undertaking whatever, has been or shall be compelled to pay any judgment or any part thereof, or shall make...