Gault

This is an appeal from an order granting defendants’ motion for a new trial.

The facts are as follows: About December 10, 1908, defendants executed three promissory notes of five hundred dollars each, payable one year after date to Henry J. Martens, who, on January 9, 1909, indorsed and delivered the same, with other notes amounting in all to thirty-four thousand dollars, to the Bank of Topeka, Topeka, Kansas, as collateral security for the payment of a note of sixteen thousand dollars made by him to said bank, which by its terms matured six months thereafter and which at maturity was renewed for six months. Upon Martens making default in the payment of his renewal note for sixteen- thousand dollars, the bank brought suit thereon and secured judgment, upon which it had an execution issued, and caused the sheriff of Shawnee County, Kansas, to levy the same upon the thirty-four thousand dollars in notes so deposited as collateral security, all of which notes, including those made by the defendants and constituting the subject of this action, were by the sheriff, under and by virtue of the levy so caused to be made, sold in September, 1910, for the sum of- one hundred dollars to…