County of Dubuque ex rel. School Fund v. Koch
Supreme Court of Iowa
Appeal from Dubuque District Court. One John T. Everett as principal, one Pierce and the defendant, Koch, as sureties, executed a joint and Several Dote to the school fund commissioner of Dubuque county, in consideration of school money loaned to the said Everett. To secure tlie payment of the said note, Everett and wife at the same time (May 1st, 1857), executed a mortgage.
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Appeal from Dubuque District Court. One John T. Everett as principal, one Pierce and the defendant, Koch, as sureties, executed a joint and Several Dote to the school fund commissioner of Dubuque county, in consideration of school money loaned to the said Everett. To secure tlie payment of the said note, Everett and wife at the same time (May 1st, 1857), executed a mortgage. Prior to 1862, suit was brought in equity to foreclose this mortgage against Everett, the principal, and Pierce and Koch, as sureties. All of the defendants were served except Pierce, but the suit was dismissed without…
1Opinion of the CourtDillok, J.
1. Promisory note: merger. The foreclosure suit having been dismissed without prejudice as to Koch, he cannot claim that the judgment therein operates as a bar to any further proceeding, on the ground that he was a party to the action, and that the matter as to' him is res judicata. Under ’our statute, the plaintiff has the right to proceed in the first instance against the sureties, or against any one of them, if he so elects. Or, he may sue the principal first, and the sureties, any or all of them, after-wards. He can, of course, have but one satisfaction. Rev. § 2764; Code of 1851, §1681.…
2Cases cited1 opinion
- Wahl v. PhillipsSupreme Court of Iowa · 1861
3Cited by2 opinions
- Eaton v. Marion County Fair Ass'nDistrict Court, S.D. Iowa · 2001
- Heaton v. FrybergerSupreme Court of Iowa · 1874