
    Riesch, Respondent, vs. Degnitz and others, imp., Appellants.
    
      December 4, 1929
    
    January 7, 1930.
    
   Crownhart, J.

The judgment must be reversed. The action was begun to recover on the notes from the makers and from the appellants Degnitz as indorsers thereof. We disregard the suggestion that the appellants Degnitz were guarantors of payment of the notes, the allegation in the complaint being insufficient in that regard and there being no evidence of the fact.

The notes were past due when transferred by indorse-ments. They were then by force of the statute, sec. 116.11, demand obligations so far as the indorsers were concerned. It was the duty of the respondent to make demand upon the makers within a reasonable time in order to charge the indorsers. Sec. 116.75, Stats. In case of failure of payment, upon demand, by the makers, in order to hold the indorsers, the respondent was required to give the in-dorsers prompt notice of dishonor. Sec.. 117.07, Stats.

There is no allegation in the complaint that demand of payment was made on the makers, or refusal to pay or notice of dishonor to the indorsers. There is no verdict and no finding of the court to that effect. There is no evidence in the record of notice of dishonor to the indorsers of the notes.

For these reasons the judgment must be reversed. As it appears that there was a misconception of the issues by the parties and the court, justice demands that a new trial be had. Other errors assigned may not arise on a retrial, and are not now considered.

By the Court. — The judgment of the circuit court is reversed, and a new trial ordered.  