15 Pa. Super. 96 | Pa. Super. Ct. | 1900
Opinion by (after finding the facts as set out in the statement of facts):
It is true, the right of a surety in a judgment to collect it of his principal after the former has paid it is well settled. An actual assignment to the paying surety is not necessary. The 9th section of the act of April 22, 1856, applies to judgment liens on real estate and is intended to adjust and protect the equities of persons holding such liens. It was not designed to settle the rights, nor to prescribe the remedies between surety and principal. “ The right of substitution being shown, and the surety having paid the debt, he succeeds by operation of law to the rights of the creditor: ” Duffield v. Cooper, 87 Pa. 443. Accordingly it was held, that, while as a general rule an execution must follow the judgment, yet if a surety in a judgment pays the whole amount he may issue an execution against his principal alone in the name of the legal plaintiff for his, the surety’s, use without a formal substitution by assignment or otherwise. This, as we understand that case is all that was decided. The decision sustains the regularity of the procedure followed by the surety in the present ease but it does not touch the question as to the effect of his delay in asserting his equitar
It follows that if no other facts can be shown than those now appearing, the defense must prevail. But here arises a question of practice. Is not the surety entitled to have the question tried .out on the scire facias he has issued instead of on a motion to summarily set aside the execution ? Under the Act of May 19, 1887, P. L. 182, and the principles enunciated in Baily v. Brownfield, 20 Pa. 41, we are of opinion that this question must be answered in the affirmative. Therefore, although we are unable to concur fully in the reasons given by the learned
The order is affirmed and appeal dismissed at the costs of the appellant, without prejudice, however, to his right to move the court below to stay the execution and to set up the defense now urged upon the trial of the sci. fa. as provided in the Act of May 19, 1887, P. L. 132.