Turner v. Hale , 8 Kan. 38 ( 1871 )

Tbe opinion of tbe court was delivered by

Kingman, C. J.:

Tbis was an action on a note in which Jelly was tbe surety of tbe other obligors. Separate answers were filed by tbe defendants. Tbe cause was tried by tbe court, and special findings of fact were made.

In tbe argument, it is claimed that tbe findings of fact.are not sustained by tbe evidence. Tbe record does not purport to contain all tbe evidence. To reverse tbe judgment on tbis ground would place tbis court in tbe position of saying that, with a knowledge of what may be only part of tbe facts, we will overturn a decision of tbe court below made upon all tbe facts of tbe case. It has been repeatedly decided that tbis court could not do so, and tbe decision is repeated in tbis case.

But it is claimed that tbe findings on some points are contrary to tbe evidence that is preserved, and tbis may be true; but bow tbe facts might have appeared bad all tbe evidence been presented we cannot say. Tbe presumption is that tbe facts were found upon sufficient evidence, until tbe contrary is shown; and such a result cannot appear upon a part of tbe evidence only. It is further claimed that tbe defendant Jelly was released by virtue of a notice given by him as surety to Hale, requiring Hale to commence suit, or permit Jelly to do so in Hale’s name. This notice appears in tbe findings of tbe court, but not in tbe evidence. We therefore are bound to take it that such a notice was given. But such a notice of itself does not discharge a surety. It must be followed by a refusal to bring the suit, or to permit the surety to use the name of the holder of the note for that purpose; and the record is silent on both of these points. "We are therefore, in support of the judgment, to presume that there was testimony showing that the holder of the note either brought a suit or authorized the surety to do so. Again, it is insisted that the finding of the court that Howsley indorsed the note, and by his indorsement transferred it to Hale, is contrary to Hale’s own testimony, and therefore it is incorrect. It is true that Hale’s testimony makes-Howsley an accommodation indorser merely, but as the action as to Howsley had been dismissed, and as the pleadings admit the legal transfer of the note to Hale, we cannot see how this error, if it be one, can affect the plaintiffs in error; but for the reasons given above we cannot say it is error. -The judgment is affirmed.

Yalentine, J., concurring. Brewer, J.¿ not sitting.