
    26766.
    GARRETT v. BISHOP.
    Decided April 21, 1938.
    
      Hal M. Smith, for plaintiff in error. W. A. Woolen, contra.
   Felton, J.

This was an action against the maker and a surety on a promissory note, which was defended by the surety on the ground that his risk had been increased by failure of the payee to collect the note, or obtain the property conveyed by bill of sale to secure the note, after the surety had given oral notice to the payee to do so. The surety contends that on several occasions he told the payee to proceed against the property, and that the payee promised him that the money would be collected from the maker, or the property taken, and that by relying on this promise on the part of the payee the surety was deprived of his right to pay the note and protect himself. The answer of the surety alleged that the maker of the note absconded after the note became due. These contentions of the surety, and the allegation that the maker absconded after the note became due, are wholly unsupported by the evidence.

Eor the purposes of this decision we shall assume, without deciding, that the plaintiff in error was merely a- surety. The uncontradicted evidence revealed that the maker of the note was never in Dodge County after the maturity of the note (the county of the residence of all the parties at the time the note was made). It further showed that the payee of the note was unusually diligent in trying to get the money from the maker, and that immediately upon the maturity of the note, he went into another county trying to find the maker, and that he enlisted the aid of a sheriff and the plaintiff in error, and that their combined efforts were fruitless. The evidence wholly failing to show that the risk of the surety had been increased, and that the payee was not diligent in trying to collect the note from the maker, the court did not err in directing a verdict for the plaintiff and in overruling the motion for new trial.

Judgment affirmed.

Stephens, P. J., and Sutton, J., concur.  