Chapter 433 Suretyship

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The remedies given by this chapter may be maintained by and against executors and administrators, in all cases where they could be maintained by or against their testators or intestates, if they were living.

The notice required above shall be served by delivering a copy thereof to the person having the right of action on the instrument, or leaving a copy at his usual place of abode with some person of the family over the age of fifteen years.

No such surety shall be compelled, in any action, to pay more than his due proportion of the original demand; and when such surety shall have previously paid any portion thereof, he shall be liable to pay only so much as the amount already paid by him falls short of his due proportion of the original demand.

Any person bound as surety in any bond given by any officer, including personal representatives, guardians, conservators, assignees, receivers, trustees and depositaries to secure the faithful performance of the duties of such officer, may, on his petition in writing addressed to the court authorized by law, for the time being, to take and approve such official bond, be discharged from all future liability on such official bond.

If such suit is not commenced within thirty days after the service of such notice, and proceeded in with due diligence, in the ordinary course of law, to judgment and execution, such surety shall be exonerated from liability to the person so notified.

When there are two or more sureties in any such bond, bill or note, and any of them shall pay, in money or property, more than his due portion of the original demand, such surety may recover such excess, as herein provided for a surety against the principal debtor.

Any person bound as surety for another in any bond, bill or note, for the payment of money or delivery of property, may, at any time after an action has accrued thereon, require, in writing, the person having such right of action forthwith to commence suit against the principal debtor and other parties liable.

Any person bound as surety in any bond given by any officer to secure the faithful performance of his duties, who shall pay any money which he shall have been liable to pay by reason of such bond, shall have the same right and remedy against his principal and cosureties as is provided in this chapter against principals and cosureties in bonds, bills and notes, for the payment of money or delivery of property.

If such action be not begun by the party having the right thereof, within a reasonable time after being notified as above provided so to do, and proceeded in with due diligence in the ordinary course of law to a final determination of the issues, the surety giving such notice shall be exonerated from liability to the person so notified; provided, that two or more sureties may join in the same notice; provided further, that the service of notice on the administrator or executor of the estate, or the waiver thereof, shall be deemed to be the commencement of such action within the meaning of sections 433.090 and 433.100.

If such principal shall neglect or refuse to give such new bond, with sureties, within sixty days after making such order, his office, trust, power and authority shall thenceforth be vacated, cease and determine; and the court making such order, or having the power to take such new bond, shall forthwith certify such vacancy to the court or officer having power to appoint a successor, and such vacancy shall be immediately supplied according to law.

A notice in writing of such intended application, together with a copy of the petition, shall be personally served on the principal in the bond, at least fifteen days before the making of the application.

When any bond, bill or note for the payment of money or delivery of property shall not be paid by the principal debtor, according to the tenor thereof, and such bond, bill or note, or any part thereof, shall be paid by any surety thereto, the principal debtor shall refund to such surety the amount or value so paid, with interest thereon at ten percent per annum from the time of such payment.

Sections 433.010 and 433.030 shall not extend to the bond of any personal representative, guardian, conservator, officer or other person given to secure the performance of the duties of his office, trust, place of business, nor to any bond with a collateral condition, except bond with conditions exclusively for the payment of money or the delivery of property, or for the performance of any covenant or agreement for the payment of money or delivery of property.

The petition shall set forth the facts upon which the application for a discharge is founded, and shall be verified by the affidavit of the petitioner thereto annexed.

When such payment by a surety shall be made in money, such surety may recover the same, with the interest; and when such payment is made in property, he may recover the value, with interest.

If the principal in the bond shall be absent from the state for the period of six months, the publication of the notice and petition in some newspaper printed in this state, for four weeks successively, shall be sufficient service of the notice.

The court to whom the petition is addressed shall hear the application, and may, on examination thereof, in its discretion, make an order requiring the principal in such bond to give a new bond, with sureties for the performance of his official duties.

In all cases where judgment is given in any court, whether of record or not, upon any bond, bill or note, for the payment of money or delivery of property, against the principal debtor and any surety therein, and such surety shall pay the judgment or any part thereof, he shall be entitled, upon motion, to a judgment in the same court against the principal debtor for the amount he has paid, with ten percent interest thereon from the time of payment, together with costs.

When such new bond is taken, approved and filed, it shall immediately operate as a discharge of all the sureties in the former bond from all liability arising from any subsequent misconduct or default of the principal therein, and such sureties shall thenceforth be liable on such bond only for such breaches thereof as shall have happened prior to the taking, approving and filing of the new bond.

If any person bound as principal or surety in any bill, note or other instrument of writing for the direct payment of money dies, any cosurety therein, or his legal representatives, may, in writing, at any time within the time limited by law for presentation of demands against estates of deceased persons, notify the person having the right of action to proceed to action in the proper tribunal to secure judgment against the estate of the deceased on account of such bill, note or other instrument aforesaid.

No judgment shall be rendered, as is provided in section 433.070, unless the party applying therefor shall have given the adverse party at least ten days' notice, in writing, of such motion, nor unless such motion shall be made within one year after the rendering of the original judgment.

If such bond be given, it shall be taken, approved and filed in the same manner that the official bond of such officer is required by law, for the time being, to be taken, approved and filed.