23 Mont. 33 | Mont. | 1899
delivered the opinion of the court.
This is an appeal from an order made and entered in the district court of the Eighth judicial district in
On December 22, 1892, the plaintiff herein recovered judgment against the Great Falls Opera House Company, a corporation, as principal, and C. M. Webster, Charles Wegner, H. O. Chowen, F. P. Atkinson, Ira Myers, and Ernest Crutcher, as sureties, for the sum of $2,212.50, with interest at 10 per cent, per annum from the date thereof. The motion for execution herein against F. P. Atkinson was made upon the same day as the motion made in the case of Northwestern National Bank v. Great Falls Opera House Co., et al., ante p. 2, 57 Pac. 440. It was heard at the same time, and upon substantially the same proof. The right to contribution from Atkinson in this case, however, is based upon a formal assignment of the judgment by the plaintiff to the moving defendants after payment of the same by them. This payment was made on December 23, 1892, and the facts with reference to it are set forth in full in the opinion in Northwestern National Bank v. Great Falls Opera House Co., et al., supra. The affidavit of the moving defendants herein differs from the affidavit made in that case in that it predicates the claim of contribution upon the assignment of the judgment. It also appears from the affidavit that, though assigned to the respondents, the judgment was thereafter formally satisfied by the attorneys for plaintiff at the request of some one of the respondents, in order that it might not appear as a lien upon the real estate of the respondents, which they were selling from time to time. This formal satisfaction is alleged to have been made for this purpose only.
The defenses alleged in the counter affidavit of Atkinson in this case are the same as in the former case. The action of the court upon the defense based upon the alleged contract of Atkinson with Webster, Chowen, Crutcher, and Myers, and also upon the plea of the statute of limitations, was the same. The contract sought to be made available herein is the same
After the proof was heard, the court below ordered execution to issue against Atkinson for $448.50, or one-fifth of the judgment, with interest; it appearing that Ira Myers had contributed his share of the judgment, and that Wegner was. insolvent. From this order Atkinson appeals.
Besides the assignments of error made in the former case, which were therein considered and disposed of, and will not, be here again examined, the appellant asks a reversal on two-grounds:
(1) That the court erred in granting the motion for the reason that no notice of payment and claim of contribution was filed as provided by Section 1242, Code of Civil Procedure; and
(2) That the court erred in granting the motion for the-reason that the judgment had been satisfied of record.
On the other hand, it is held by eminent authority that a-surety who pays the judgment for his principal and co-sureties may not only keep the judgment alive as to his principal to enforce reimbursement, but also against his co-sureties for the purposes of contribution; and this may be done either by assignment to a third party for the benefit of the surety paying, or by direct assignment to the surety himself. (Coffee v. Tevis, 17 Cal. 239; Wheeler’s Estate, 1 Md. Ch. 80; Brown v. White, 29 N. J. Law, 514; Scribner v. Hickock, supra; Lidderdale's Ex'rs v. Robinson’s Ex'r, 12 Wheat. 595; 1 Brandt on Suretyship (2d Ed.) Sec. 279.) The right to subrogation in such cases is made to depend upon the intention of the debtor at the time the payment is made. In Campbell v. Pope, 96 Mo. 468, 10 S. W. 187, a judgment had been rendered against several joint defendants, including the city of St. Louis. The judgment was for a tort. Under a clause ini its charter the city of St. Louis was only secondarily liable. This judgment was assigned by the plaintiff to a third party, to be kept alive for the benefit of the city, which paid it for the purpose of enforcing contribution. The court supports the right to do this, and, after citing with approval the doctrine of the cases supra, say: “We must hold, and do hold, that the payment made by Campbell for the assignment of the judgment was not intended to be a satisfaction of the-judgment, and that the assignment thereof to him was made-for the purpose of keeping the judgment alive, so that it
We are unable to draw any substantial distinction between the rights of a surety against his principal and his rights as against his co-surety. In each case they are founded upon the implied agreement, growing out of the relation the parties bear to each other, that the one will refund or make good to the other money paid out by the former for the benefit of the latter. If the assignment can be made to a third party, and he can proceed as the agent of the paying defendant to enforce contribution against the co-defendants, there is no sound reason why the same thing cannot be done by an assignment directly to the paying defendant himself, and contribution enforced in his name. To say that one can do through an agent what he cannot do himself seems absurd. In the case of Coffee v. Tevis, supra, the court brushes aside this fiction, and treats the judgment assigned to the agent as if it had been made directly to the paying defendant. We are of the opinion, not only that the assignment may be made for the benefit of the co-surety, but that it may be made directly to the person who is to benefit by it, and that he may enforce it in his own name. This conclusion seems to be in conformity with the spirit of our statute that the real party in interest shall prosecute the action in his own name. (Section 4, First Division, Comp. St. 1887; Sec. 570, Code Civil Procedure 1895.)
Let the order appealed from be affirmed.
Affirmed.