
    Neiderer v. Miller et al.
    1. Practice in Supreme Court: evidence conflicting, judgment affirmed. Where the question is only whether the finding of the court sitting as a jury is supported by the evidence, and the evidence is conflicting, the judgment will be affirmed.
    
      Appeal from Johnson District Court.
    
    Saturday, December 9.
    This is an action for a balance due on a promissory note executed by the defendants and one Shetler to the plaintiff. There was a trial to the court which resulted in a judgment for the plaintiff, and defendants appeal.
    
      
      S. H. Favrall and Bool do Jackson, for appellants.
    
      Baker <& Ball, for appellees.
   Rotheook, J.

It appears that the note in question was given for money borrowed of the plaintiff. The money was borrowed by Shetler and Miller, each taking one half. Shetler signed the note as principal for the half borrowed by himself, and-Miller signed as principal for the half he borrowed, and each was considered as surety for the other, and Hanteen signed as surety for the whole amount. Shetler became insolvent, and it is claimed by defendants that they are discharged from all liability for the amount now due, by reason of two promissory notes which were given to plaintiff, with one Moses Miller as surety, under an agreement that plaintiff should look to the assets of Shetler, then in the hands of trustees, for the balance. The plaintiff denies that she was •in any way a party to such an agreement. The defendants contend that, if the evidence does not show that she was originally a party thereto, she afterwards ratified it.

The case, therefore, turns upon questions of fact merely. An examination of the testimony of the witnesses discloses the ordinary case of a conflict of evidence which this court cannot be called upon to reconcile. Indeed, it appears to us that upon all the material facts there is a strong preponderance with' the plaintiff. It is useless to set out or discuss the evidence. The appellee has filed in this court a certified copy of the supersedeas bond, and asks that judgment be en tered against the surety therein, and it is so ordered.

Affirmed. behalf of the plaintiff, and, having testified as to the nature  