Davis v. Wilson, 52 Iowa 187

Davis v. Wilson

52 Iowa 187 | Iowa | 1879

Day, J.

1. judgment: puroliaseof: surety on inboiui. The defendant AT. Cl. Reed was not a party to the judgment recovered by the Gilcrests against E. P. AVilson, either as surety or otherwise. Reed simply be- , , came surety upon an injunction bond, m a proceeding instituted by E. P. ATilson to enjoin the

sheriff from the sale of property under a special execution issued upon said judgment. Section 3396 of the Code provides that when proceedings in a civil action, or on a judgment or final order, are sought to be enjoined, the bond must be conditioned to pay such judgment, or comply with such final order, if the injunction is not made perpetual. . Appellant insists that the relation, of Reed to this judgment is such that he could not purchase the judgment and take an assignment of it to himself, and that the alleged attempt to do so satisfied the judgment and discharged the lien. In support of this position appellant cites and relies upon Bones v. Aiken, 35 Iowa, 534; Drefahl v. Tuttle, 42 Id., 177; Johnston v. Belden, 49 Id., 301. These authorities are not applicable to this case. They hold that the payment of a judgment by one of several defendants operates as an extinguishment and satisfaction thereof, although the payment be made by one who is, in fact, a surety. That this holding is correct there can be no question, for after the payment of a judgment by a party to it, it must, in law, be regarded as satisfied. But that is not this case; Reed does not appear upon the record as a party to the judgment. So far as the record in the main case shows, he is a mere stranger to the proceeding. .True, in another case, a distinct proceeding, he executed a bond in which he agreed, upon the happening of certain contingencies, to pay this judgment. But he did not, we think, by this act become a party to the judgment, nor deprive himself of the right to purchase and take an assignment of the judgment. Appellant has devoted much time to a discussion of Reed’s equitable right to subrogation to the lien of the judgment creditors, the Gilcrests. That question is not in this case. If Reed had simply paid off the judgment, without *192more, that question might have arisen. But the answer alleges that Reed purchased the judgment and took a written assignment to himself. lie had a right to make such purchase, and lie holds the judgment with its lien unsatisfied. The appellant devotes much time to the discussion of the proposition that a surety cannot speculate upon his principal, and that, whatever form the transaction assumes, the surety cannot recover of his principal more than the surety actually pays. That question is not in this case. The Wilsons make no defense or complaint. It nowhere appears in the record that Reed paid for the judgment less than its face; there is no presnmption that he paid less. Even if it appeared that Reed paid less than the face of the judgment, we do not see how the plaintiff can insist upon that fact. The judgment is a prior lien to the plaintiff’s mortgage, and the plaintiff'has no ground of complaint if the judgment is enforced to its full extent. The fact that Reed took indemnity when he signed the injunction bond does not, we think, affect his right to purchase the judgment. This disposes of the ruling’ upon the demurrer to Reed’s crossypetition.

2. gabnishproperty íioííi as indemnity. II. The points in the demurrer to the petition of intervention of McCormick, in addition to what has already been considered, are as follows: “ That said C. II. McCorinck & Bro. can acquire no lien or interest in said por3es? for the reason that they-are a trust fund in the hands of said Reed for the securing and paying said judgment, and are so inseparably connected with the same that intervenors can acquire no lien whatever. That said petition fails to show that there was no other property of A. R. Wilson that could have been attached at the time of the issuance of the attachment, or that he was insolvent.”

First. Notwithstanding the fact that Reed held a bill of sale upon the chattel property for the purpose of indemnifying him against loss on the injunction bond, the proceeds of the property, after satisfying Reed, were liable to attachment by the garnishment of Reed. See Torbert v. Hayden, 11 Iowa, 435 (444); Brainard v. Van Karan, 22 Id., 261; Hoffman v. Wetherell, 42 Id., 89.

*193Second. In order to authorize such garnishment it is not necessary that it should appear that at the time of the garnishment the debtor had no other property liable to attachment, or was insolvent. It is necessary only that one of the grounds for attachment should exist. This view disposes of the demurrer to the petition of intervenors, and of all the questions properly before us for consideration. The court simply overruled the demurrer, and determined that Eeed has the right to sell the premises under execution. All the other issues in the case were continued for further hearing. The intervenors pray, in their petition, that Eeed be ordered to exhaust the real estate upon which his j udgment is a lien before resorting to his security under the bill of sale. The court did not pass upon his right to that relief, and that question is not now before us. All that we can properly now determine is that there was no error in overruling the demurrers.

Affirmed.