Stetler v. Boling , 52 Okla. 214 ( 1915 )

If the guaranty was stamped on the back of said note prior to its assignment by plaintiff in error, Boling undoubtedly had the right to extend the time of payment, without further consent of plaintiff in error. But, regardless of whether said guaranty was made at the time said note was assigned, the pivotal point in this case is that there was no evidence that the time of payment of said note was extended for a definite period and for a consideration moving to Boling, without the consent of plaintiff in error.

In Cook v. Sorrells, 43 Okla. 742, 144 P. 347, it is held:

"Where, in a suit on a promissory note, the evidence does not tend to disclose an agreement between the payee and the principal debtor for delay in its payment, a judgment in favor of the sureties, exonerating them from payment on that ground, will be reversed.' "

In Maker v. Taft, 41 Okla. 663, 139 P. 970, 52 L. R. A. (N. S.) 328, it is held that when the defendant sets up in his answer that a payment had been made on a note after its maturity of a sum less than the interest, and a promise made by the creditor to extend the time of payment of such note beyond the time of maturity thereof, there was no consideration for such promised extension, and a demurrer to the answer on the ground that it failed to set out facts sufficient to constitute a defense was well taken, and should have been sustained.

In Adams v. Ferguson, 44 Okla. 544, 147 P. 772, Judge Brewer says:

"The conflict in the authorities on the point under discussion is noted in 32 Cyc., at page 209, and numerous cases supporting each view are cited in notes 8, 9, 10, and 11. These notes are extended in volume 40, Century Dig. tit. Principal and Surety, sec. 215. We shall not set out the cases on either hand, but will say that we have examined many of them, and have come to the conclusion that upon the question the authorities are about evenly balanced, but that the better reasoning supports the view that an extension of a note to a definite period, by agreement between the holder and principal, without the consent of the surety, by which the principal agrees to pay for the extended period the same rate of interest named in the original undertaking, has the effect of releasing the surety from any obligation to pay the note."

In McLemore v. Powell et al., 12 Wheat. 555, 6 L. Ed. 726, cited with approval by this court in Cook v. Sorrels, supra, it is held:

"An agreement between the creditor and principal debtor for delay, or otherwise changing the nature of the contract, to the prejudice of the surety, in order to discharge the latter, must be an agreement having a sufficient consideration, and binding in law upon the parties."

In 20 Cyc. 1472, the rule is stated as follows:

"The rule with reference to the discharge of a surety by the giving of time is equally applicable to the guarantor of the debt of another. And an extension by the creditor of the time of payment or of performance by the principal debtor without the consent of the guarantor discharges him, if it is something more than a mere indulgence and is based upon a binding agreement, which is for a definite time, and is founded upon a consideration."

Plaintiff in error complains that the evidence of the cashier and the stenographer of said bank as to when the guaranty was stamped on said note, not having been offered in chief, the court committed reversible error in permitting said evidence to be offered in rebuttal. This was not prejudicial eror.

In Harris v. Palmer, 25 Okla. 770, 108 P. 385, it is held:

"The order of proof is largely a matter of discretion with the trial court, and hence evidence which is properly a part of plaintiff's case in chief may be permitted to be introduced out of its regular order, or the court in the exercise of a sound discretion may reopen a case for the introduction of relevant and material evidence, after both parties have rested; and, in the absence of a showing of surprise or prejudice or an abuse of discretion, such action will not be subject to reversal."

See, also, Standifer et al. v. Sullivan, 30 Okla. 365,120 P. 624:

In his brief, plaintiff in error admits that the instructions of the court correctly gave to the jury the law of the case. As to whether plaintiff discharged his duty to defendant Stetler, as guarantor on the note, by proper efforts to collect and the question as to when the guaranty was indorsed upon said note having been submitted to the jury upon evidence tending to sustain the contention of plaintiff below, and the jury having found adversely to the plaintiff in error, especially in view of the fact that there is no evidence tending to show that plaintiff below agreed with the makers of said note, upon a valid consideration, to extend the time of payment to any definite time, the verdict of the jury is binding upon plaintiff in error and upon this court.

While an appeal is pending in this court, the trial court is without jurisdiction to make any order involving any question covered by the appeal; but matters independent of and distinct from the questions involved in the appeal, and which are purely collateral or supplemental, lying outside of the issues framed in the case appealed, or arising subsequent to the delivery of the judgment from which the appeal is prosecuted, are not taken from the jurisdiction of the trial court by appeal. The general rule that the case leaves the jurisdiction of the trial court when the appeal is perfected is not impinged by holding that purely collateral or supplemental matters are left under the control of the trial court, notwithstanding the loss of jurisdiction over that part of the case taken to the higher court

The rule above stated finds support in many cases, among which we cite the following: Herbert v. Wagg et al.,17 Okla. 674, 117 P. 209; Burnett v. Jackson, 27 Okla. 275,111 P. 194; 4 Enc. L. P. 251, note 21; 2 Cyc. 978; Hayes v. Frey etal., 54 Wis. 503, 11 N.W. 695; Kemp et al. v. Nat. Bank of theRepublic of New York, 109 Fed. 48, 48 Cow. C. A. 213; Line et al.v. State ex rel. Louder, 131 Ind. 468, 30 N.E. 703.

The case of Egbert v. St. L. S. F. R. Co., 50 Okla. 623,151 P. 228, to which our attention is specially called by counsel, is not in conflict with this opinion, and correctly declares the law governing that case. In said case it was sought to affect a question involved in the appeal. In the instant case, a collateral matter, not involved in the appeal, was acted upon, and of which the trial court had not lost jurisdiction by reason of the appeal.

The discharge in bankruptcy was subsequent to the rendition of the judgment appealed from. The subject-matter of the judgment appealed from was covered by the discharge in bankruptcy, and was equivalent in law to a payment of said judgment. Could it be consistently said that, had the Sturgeons, pending the appeal, paid said judgment, then they would not have been entitled to have the record show that such payment was made, to the end that they might not suffer annoyance by the issuance of execution? We think not.

It therefore follows that the judgment of the trial court in case No. 5677, vacating the judgment rendered against said Sturgeons as defendants, and the judgment against said M.O. Stetler, James, John R., and Nancy A. Sturgeon in cause No. 4901, should be affirmed.

By the Court: It is so ordered.