
    Turner and Jelly v. Henry Hale.
    1. Practice ; Error not presumed. The supreme court cannot say that the facts found by the district court are unsupported by the evidence, or are contrary to the evidence, where the record does not purport to contain all the evidence in the case.
    2. Surety — IAabibity; Release; Notice. To release a surety in a note, it is requisite that he give written notice to the holder to commence suit, or permit the surety to do so in the holder’s name, and that the holder of the note should refuse to do either. Where the record discloses the notice, and is silent as to whether the holder brought a suit, or permitted the surety to do so in his name, and the judgment of the court is that the surety is not released, a reviewing court cannot say that the judg. ment is wrong, as it cannot presume that there was not evidence in the case that sustains the judgment.
    
      Error from Lememoorth District Oov/rt.
    
    Action brought by Henry Hale on ’a promissory note dated May 14th, 1867, payable to L. Turner or order, six months after date, for $500, signed by Truman H. Craig, Will E. Tm-ner, J. 8. Jelly, and indorsed by L. Turner and Rob’t H. Howsley, Defendants answered separately, setting up sundry defenses. The case was tried by the court, and among other things the court found specially as facts: That James S. Jelly signed the note as surety, and Craig and both Turners as principals; that notice of protest and demand of payment was duly made and served on James S. Jelly; that there was a failure of consideration in said note to all except the sum of $202.90; that the note had been duly indorsed by L. Turner, and transferred to Henry Hale, the plaintiff; that Jelly gave notice to Hale to proceed against the principals, or to permit him to do so; that Craig' had left the State permanently before said notice was served, and was insolvent at the time of service of said notice, as were also both Turners. And the action being dismissed as to Howsley, the court found as conclusions of law from the facts that Hale was entitled to judgment against Craig and the Turners as principals, and Jelly as surety, for the sum of 202.90. Judgment accordingly. Will F. Twrner and J. S. Jelly moved to set aside tbe judgment and findings, and for a new trial. Motion overruled, and tbe case is brought here for review.
    
      Stvrcl c& Stillings, for plaintiffs in error.
    
      Thomas P. Fenton, for defendant in error.
    
      
       Such is tlie record; but Z. Turner was the payee, to whose order the note was payable, and he “ duly indorsed” it as such. How then can it be said he “ signed the note as a principal” even though his liability as indorser be as absolute as that of the principal maker? — Reporter.
    
   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.  