25-1544. Judgment against principal and surety; how entered; how executed.

In all cases where judgment is rendered in any court of record within this state upon any instrument in writing in which two or more persons are jointly and severally bound, and it shall be made to appear to the court by parol or other testimony that one or more of said persons so bound signed the same as surety or bail for his or their codefendant, it shall be the duty of the clerk of said court in recording the judgment thereon, to certify which of the defendants is principal debtor, and which are sureties or bail. The clerk of the court aforesaid shall issue execution on such judgment, commanding the sheriff or other officer to cause the money to be made of the goods and chattels, lands and tenements, of the principal debtor, but for want of sufficient property of the principal debtor to make the same, that he cause the same to be made of the goods and chattels, lands and tenements of the surety or bail. In all cases the property, both personal and real, of the principal debtor, within the jurisdiction of the court, shall be exhausted before any of the property of the surety or bail shall be taken in execution.

Source

Annotations

1. Scope

2. Liability of surety

1. Scope

Purpose of statute was to enlarge the legal rights of the surety by requiring the property of the principal to be first exhausted before levy on the property of the surety. Exchange Elevator Co. v. Marshall, 147 Neb. 48, 22 N.W.2d 403 (1946).

Above section does not control procedure on entering judgment on bond guaranteeing fidelity of employee. Luther College v. Benson, 126 Neb. 410, 253 N.W. 421 (1934).

Statute applies generally to judgments on supersedeas bonds which stay proceedings pending appeals from district court to Supreme Court. Sonneman v. Dolan, 124 Neb. 830, 248 N.W. 402 (1933).

In action on injunction bond, judgment against principal and surety should be entered under this section. Trester v. Pike, 60 Neb. 510, 83 N.W. 676 (1900).

Judgment otherwise joint is not rendered several by finding entered under this section. Farney v. Hamilton County, 54 Neb. 797, 75 N.W. 44 (1898).

2. Liability of surety

It is not the duty of the jury to find which of the defendants is principal and which is surety. Smith v. Roehrig, 90 Neb. 262, 133 N.W. 230 (1911).

Vacation of judgment as to principal vacates as to surety. Sturgis, Cornish & Burn Co. v. Miller, 79 Neb. 404, 112 N.W. 595 (1907).

Surety paying judgment and taking assignment, may have execution against principal. Nelson v. Webster, 72 Neb. 332, 100 N.W. 411 (1904).

Failure of clerk to certify that some were principals and others were sureties, was reversible error, although matter was not brought to attention of trial court. Blaco v. State, 58 Neb. 557, 78 N.W. 1056 (1899).

Failure of judgment to distinguish between principal and surety does not extinguish relation. Drexel v. Pusey, 57 Neb. 30, 77 N.W. 351 (1898).

This section cannot be invoked in determining liability of surety to obligee. It applies only after judgment. Kroncke v. Madsen, 56 Neb. 609, 77 N.W. 202 (1898).

Liabilities of sureties will not be extended beyond terms of their agreements. Godfrey v. City of Beatrice, 51 Neb. 272, 70 N.W. 914 (1897).

In action on supersedeas bond judgment should show which defendant is principal debtor. Van Etten v. Kosters, 48 Neb. 152, 66 N.W. 1106 (1896).

Where agreement is made to exhaust one debtor's property first, its violation may be enjoined. Gibson v. McClay, 47 Neb. 900, 66 N.W. 851 (1896).

Surety discharging debt is entitled to contribution from co-surety. Smith v. Mason, 44 Neb. 610, 63 N.W. 41 (1895).