The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1895-11-12
ERIE MEDICAL CO., BUFFAL0,h.Y

fies us, that a very high degree of dill
gence is required TO be shown by a per-
son (and in a case like this by his fami-
| ly left at his usual place Of residence
before ne can consistently claim that he
has been unavofdably prevented from
defending against the former Judgment
If he has been guilty of no negligence
this statute steps in and gives him re-
lief against an unjust judgment
Il would be impossible TO give an ex-
act definition Of negligence which would
| govern On all cases as the circumstances
of each case must be considered TO de-
| ternbine whether there was negligence
| in that case. That which might be
negligence in one case and in one trans
aston might not be negligence in anoth-
| er.
We apprehend, however, that a man
may go about his daily avocat tons of
life and transact his business either in
or out of the states, and that he may.
if he wish, take a vacation and take
his family along, without being open
to the fmputations of negligence in not
receiving a summons left at his usual
place of residence during his absence.
Especially is this so, when he had no
expectation of being sued in his alb
sence.
1t will not be commended that If man
leave his home for a vacation he must
leave his wife or some other member of
his family or heir; some one to remai in
about his premises for the purpose of
looking for the service of summons
which he had no reasonable apprehen-
sion would be issued or served. Neither
Will ii be contended that he would be
required to anticipate being sued upon
a debt he did not owe, and that will be
the case of this plaintiff in error sub
Stimulates his contentious that he is not
liable upon said note. The case might
be different if there was a proba bility
that he might have left the state to
avoid the service of summons, but
such cannot be claimed in this case.
The circumstances in this case show
that it was an unavoidable misfortune
to this plaintiff in error that he did not
receive the summons or know that suit
had been brought against him until af-
ter Judgment had been rendered there
in.
This brings in the third and last
question in this case, to-wit: Did the
plaintiff in error allege and prove a
valid and meritorious defense. The
petition alleges that the original note
sued on was renewed by a renewal
note given to said Fourth National
bank by said Journal Publishing COM
pany and others, which was taken and
accepted by said Fourth National bank
is satisfaction and payment of said
original note, and that Schnitzler was
not a party 10 said renewal note
If this allegation is true and the bank
did take the said renewal note in pay
ment and satisfaction of the note
SchnitZler signed, OF course he is re-
leased, for the note sued upon has
been paid. The petition also alleges
that the interest has been paid in adj
vance upon the indebtedness as a con-
sideration of the extension of the time
of the payment thereof, and by refer
ence to the first cause of defense
Schnitzler was no party TO the renewal.
These allegations are sufficient to sus-
tain the petition. Having alleged a
sufficient. valid and merftious defense,
did he prove one?
Analysing the transaction as disclos-
ed by the evidence we find that on June
%. 1888, the Journal Publishing COM
P2ny was indebted to the Fourth Ma
ttona1 bank, and that upon that day it
gave said bank its promissory note
due ninety days after date for the sum
OF $1,000 with II per cent interest after
maturity and that said Schnitzler, ct,
al. became sureties upon said note by
endorsing their names upon the back
thereof. AIT the maturity of said note
the bank took a note for 81 900 from the
said Journal Publishing company dated
September %. 1888, due ninety days
from that date, and the interest there
on until maturity at the rate OF IL per
cent per annum was by the said Jour
nal Publishing company paid to said
bank in cash. The original note was
not surrendered but the cashier of the
bank said that he pinned the renewal
note signed by the Journal Publishing
company to the original note as COL
lateral security therefor. and that all
the transactions relate to the same in
deotedneSs. This program was re-
peated and renewal note taken as
collateral security for the original note
and the interest paid in cash in ad- |
vance until some five or six renewal |
notes were given, except at the time of |
these subsequent renewals. the for |
mer renewal note was surrendered AMI
marked paid. Schnitzler appears to |
have had no knowledge at least Of the |
former renewals.
Was Schnitzler released bv the. first |
renewal? The first note was about /
due and the Journal Publishing COM /
pany was evidently not desi Gus IF /
paying it, so the said company gave the /
bank its note for the Indebtedness Of /
$1,000 and paid said bank in cash the 4
thereon for ninety days in ad- |
vance. The bank calls the new note
collateral security for the original note
ana attaches it thereto The legal de-
nniton Of collateral security is: Sc
purity for The payment Of money. he-
SIDES the principal security" The
security in this ras-act,on
5 the note signed by the Jour.sl Pub
iShlng company and endorsed tv
ochnltzier and two Others The col
lateral security in this transaction IS
ne note signed by the Journal Pub
iShlnS company. This is clearly no
besides the principal security
lrd IS only portion Of the princinsal
security. II is immateriaI what The /
lank may have called the note whether
.hey called the new note a collateral
tote ar renewal note. The r,,AS-;o,,