On the twentieth day of March, 1880, one O. F. Parsons, as principal, and the plaintiff, as surety, made and delivered to defendant Sigler their promissory note for the sum of five hundred dollars. In October, 1880, Sigler brought suit against the plaintiff and Parsons in the district court of Adams county, to recover the amount due on the note. Judgment by default was rendered against the plaintiff on the twenty-third day of October, 1880, for the sum of five hundred and twenty-nine dollars and fifty-five cents, and costs. Parsons appeared and filed an answer which set up certain alleged defenses and a counterclaim. On his application, the cause was continued as to him. The •cause was numbered 1,122. At that time there were two causes pending in the circuit court of Adams county in which Sigler was plaintiff and Parsons was defendant, numbered, respectively, 1,267 and 1,292. On the eleventh day of January, 1881, Sigler and Parsons •entered into an agreement entitled as in case, number 1,292, of which the following is a copy:
“It is hereby agreed that judgment shall be entered in this case for the full amount thereof, without attorney’s fees or costs to defendant, and the mortgage •duly foreclosed as prayed for in plaintiff’s petition. It is also agreed that judgment shall be entered in full amount claimed in case number 1,267, of this court, and pending on appeal, wherein D. S. Sigler is plaintiff andPage 96O. F. Parsons and L. L. Parsons were defendants against all of said defendants, and surety on appeal-bond. Also the case of D. S. Sigler, plaintiff, against O. F. Parsons and A. F. Okey in the district court of Adams county, Iowa, in the amount claimed, judgment shall be-entered by the clerk of said district court against all defendants therein as claimed in plaintiff’s petition. It is expressly agreed that no execution shall issue in the district court case until October 1, 1881, and to not issue in case number 1,267, as to Parsons, until October 1, 1881, and to not issue in the case number 1,292, circuit court, until January 1, 1882.
“[Signed] O. F. ParsoNS,
“L. L. PARSON'S,
“D. S. Sigler.”
In pursuance of that agreement, judgment was rendered against O. F. Parsons in case, number 1,122, on the twenty-fourth day of March, 1881, for the amount due, with the provision that he should have a stay of execution, without giving bond, until the first day of October, 1881. In December, 1888, an execution was. issued on the judgment against plaintiff, and placed in the hands of defendant Pomeroy, as sheriff, for service. He proceeded to serve the execution by levying it upon land owned by the plaintiff. •
It is claimed by the plaintiff that the agreement for judgment and a stay of execution was made, and the stay of execution was granted, without his knowledge or consent. This is denied by defendants, who contend: First, that plaintiff knew of the agreement, and that it was made with his consent; second, that, as plaintiff was a party defendant in case number 1,122, the presumption of law is conclusive that he consented to all the orders made to which he did not object; third, that plaintiff has been fully indemnified for all sums he may be required to pay on the. judgment; fourth, that the stay of execution granted to Parsons was no longer than that allowed by law, hence the agreement did not operate to extend the time of payment given by statute, and, therefore, did not operate to relieve the plaintiff.
I. The evidence as to the knowledge of the plaintiff of the agreement, and of his consent thereto, 1. sureties: re-mesnt fol'stay oí execution. conflicting. The plaintiff denies that he had any knowledge of the agreement, and pe denies that he ever assented to it, or to the granting of the stay of execution. He is fully corroborated by the testimony of Parsons. The further fact appears that he was anxious to have judgment rendered against Parsons, and that he could have derived no benefit from the stay of execution. On the other hand, E. A. Moore testifies that he was the attorney of Sigler in obtaining the judgment against plaintiff and Parsons in the case in the district court; that it is his recollection that Okey and Parsons discussed the subject-matter of the agreement with him before it was finally made ; that the provision in regard to the case in the district court was inserted at Okey’s suggestion; and that the matter was fully talked over with Okey before the agreement was filed and assented to by him. The fact that Okey was surety only on the note was known, and, if the conversations related by Moore actually occurred, it is strange that he did not require Okey’s signature to the agreement, and thus place his assent beyond question. The burden is upon defendants to prove that assent, but we think they have failed to establish it by a preponderance of the evidence.
The appellants insist that Parsons is not a credible witness, and that his testimony should be disregarded; that Moore is a disinterested witness, and, therefore, that his testimony outweighs that of the plaintiff. But Moore’s professional management of the case is somewhat in question, and he naturally desires to have it appear that it was prudent and right. Moreover, we do
II. It is urged that the plaintiff must be conclusively presumed to have consented to all orders made in z . . . practi the case of Sigler against himself and Parsons ce. to which he did not object, and that, as the record fails to show any objection on his part to the stay of execution, it must be presumed that he consented to it. Section 3068 of the Code is as follows : “When any court shall render judgment against two or more persons, any of whom is surety for any other in the contract on which judgment is founded, there shall be no stay of execution allowed if the surety object thereto at the time of rendering the judgment,
III. .Section 8061 of the Code provides for a stay of execution in certain cases of six months when the 8' computation"""jr ime' sum for which judgment was rendered, inclusive of costs, exceeds the sum of one hundred dollars. The judgment against Parsons was for over five hundred dollars, and appellants contend that, as the statute allows the judgment debtor ten days in which to file a stay-bond, the six months do not commence to run until the bond is filed ; hence, that in this case ten days should be added to the statutory period of six months. If that be the correct interpretation of the statute, the stay granted was no longer than that the statute authorizes for the amount of the judgment. But in our opinion the interpretation suggested is not warranted by the language of the statute. The time of the stay is to be computed from the time of rendering the judgment.
IY. It is urged that the evidence shows that plaintiff is fully indemnified against liability for the judgment in controversy. It appears that he has secured indemnity on account of liability incurred as surety for Parsons in another matter, and that he was promised indemnity on account of that in controversy, but that it was never given.
We conclude that an unauthorized extension of time was given to Parsons by reason of which plaintiff was released from liability on the judgment in controversy, and that it should be held for naught. Affirmed.