delivered the opinion of the Court:
It is not very clear to us that the appellant is entitled to avail himself of the equity proceedings in the circuit court of Virginia. It does not appear that he was a party to those proceedings. It is true that he was named as a defendant to the bill of complaint; but it is conceded that he was not personally served with a process, and the record shows no appearance for him. Nor does it appear that there was any order of publication against him. The statement that “the recollection of the clerk of the court is that service of process against the defendant herein was accepted by one Bolling as attorney for said defendant” is too vague and uncertain a foundation upon which to build a structure that would overthrow a solemn judgment of record. Were this the case of a suit here upon that decree, as the appellant suggests it should be, we apprehend that the appellant would strenuously maintain that there was no service upon him, and that he was not bound by the decree. And we are at a loss to see how in the one contingency he should have the benefit of the decree, if in the other contingency he would not be bound by it. There must be some degree of mutuality in the case.
But without determining this question, or finding it necessary to determine it, we are clearly of opinion that the judgment rendered by the circuit court of Wythe county on its common-law side on February 26, 1896, was not merged in the de~
The bill of complaint in the equity cause was plainly nothing more than the usual creditor’s bill in equity to reach equitable assets of the judgment debtor in satisfaction of the judgment; and, of course, it cannot reasonably be pretended that the filing of a creditor’s bill in equity is the commencement of a new suit wherein the judgment is to become merged. It is only a method for the execution and enforcement of the judgment; and a decree in pursuance of the bill and the reaching of assets under such decree has no effect whatever upon the operative character of the judgment, further than to satisfy it to the extent to which assets are realized through the decree. Of course, if sufficient assets are realized under the decree to satisfy the judgment, that necessarily terminates the operative character of the judgment, as any other payment or satisfaction would do; and if only a smaller sum is realized, the judgment is satisfied pro tanto, but the residue remains in full force and effect. This is elementary law, and we do not understand that it is questioned in this case.
The appellant’s contention, as we understand it, is that there is here something more than a decree under a creditor’s bill for the application of equitable assets to the satisfaction of a judgment; that there is, in fact, in the decree a new adjudication of indebtedness based upon the prior judgment, with an adjudication as to the proportions in which, as between themselves, the judgment debtors are to pay the indebtedness. But this contention we regard as wholly unfounded and without warrant of law, as well as without support in any adjudicated case.
Most of the argument on behalf of the appellant is devoted to the maintenance of the proposition that, if a suit is instituted upon a judgment, and a new judgment is therein had, the prior judgment becomes merged in the new one. But this is a proposition that no one contests. It is argued further, however, that, inasmuch as a decree in equity is of equal value with a judgment at common law, a prior judgment will be merged in a subsequent decree that is founded thereon. But this argu
It is argued, however, that here there is something beyond a mere attempt to have execution of a judgment as against some equitable assets; that there is an actual adjudication which supersedes the previous adjudication. We find nothing of the kind. We find, as against the defenses that may have been set up against execution of the judgment, it is a valid, subsisting, and unsatisfied judgment, upon which the plaintiff was entitled to recover against each and all the defendants. This is not a new judgment, but the recognition of an existing judgment.
Nor does the adjudication of the equity court as to the several liabilities of the defendants as between themselves change or affect the rights of the plaintiff or the efficacy of the judgment in any manner. It was apparently done under a cross-bill filed by one of the defendants and in accordance with a practice prevalent in Virginia. But it expressly recognized and affirmed the right of the plaintiff to have execution of his judgment against any or all of the defendants, without any reference whatever to the rights of the defendants as between themselves. We are at a loss to understand how a recognition of a judgment and of the plaintiff’s right to have it enforced against all of the defendants can be construed into a denial of its further efficacy and of its merger into the recognition, as though such recognition were the same as an adjudication of the merits of a suit upon the judgment to procure a new judgment.