Davis v. Gillilan
Missouri Court of Appeals
Appeal from the Daviess Circuit Court. — Hon. E. J.. Broaddus, Judge. (1) The law imperatively demands that plaintiff should sue both the principal debtor and all parties liable, within thirty days from the receipt of the notice by surety, if it can be done. R. S. 1889, sec. 8344; Peters v. Linenschmidt, 58Mo. 464; SisJcv. Bosenberger, 82 Mo. 46. (2) No such action was brought, only the surety was sued.
Read the full summary
Appeal from the Daviess Circuit Court. — Hon. E. J.. Broaddus, Judge. (1) The law imperatively demands that plaintiff should sue both the principal debtor and all parties liable, within thirty days from the receipt of the notice by surety, if it can be done. R. S. 1889, sec. 8344; Peters v. Linenschmidt, 58Mo. 464; SisJcv. Bosenberger, 82 Mo. 46. (2) No such action was brought, only the surety was sued. Such being the case it devolves on the plaintiff to excuse himself for such failure. This he seeks to do by attempting to show that Thornbury was dead when he brought this suit. The burden is…
1Opinion of the CourtEllison, J.
This action is based on two promissory notes executed to the payee by one Alexander Thornbury, as principal, and defendant as his surety. The notes were assigned by the payee to this plaintiff. Judgment was given for plaintiff.
statement. The defense is based on the fact that defendant notified plaintiff, as provided by statute, to commence suit against Thornbury within thirty days an(j that plaintiff failed to sue him within or after the time limited. Plaintiff seeks to avoid the defense by alleging that Thornbury was dead when the notice to sue was served. The evidence for defendant showed…
2Cases cited2 opinions
- Lancaster v. Washington Life InsuranceSupreme Court of Missouri · 1876
- Hickam v. HollingsworthSupreme Court of Missouri · 1853
3Cited by5 opinions
- State Ex Rel. Gott v. Fidelity & Deposit Co.Supreme Court of Missouri · 1927
- Bergman v. K.O.T.M.Missouri Court of Appeals · 1920
- Bergman v. Supreme Tent, Knights of the Maccabees of the WorldMissouri Court of Appeals · 1920
- Copeland v. Union Industrial Loan Corp.Supreme Court of Arkansas · 1932
- Estate of Buck v. BuckMissouri Court of Appeals · 1920