In thе year 1872 Levi Frederick borrowed of Samuel M. Mitchell twenty-five hundred dollars, and Harmon C. Vickery, Eli H. Whittaker and Charles W. Vickеry endorsed the note executed by Frederick to Mitchell, as accommodation endorsers. Frederick also borrowed from Sarah A. Goss three hundred dollars, and the same endorsers became his sureties. In 1875 Frederick failed in business, and transferred his property to his endorsers, but prior to doing so mortgaged it to secure a loan of twenty-five hundred dol
The judgments assigned to the аppellee are superior in point of time, and unless they were destroyed by the ¡payment made by him, they must prevail against the title asserted by the appellants. The equities in favor of the appellee are very strоng. He became originally involved as a co-surety with Harmon C. Vickery, and the note on which the Mitchell judgment rests was еxecuted to secure money to pay off the liability incurred as surety for Frederick, and on that judgment he was equitably liable for only one-half, as Whittaker was totally insolvent. There was, therefore, not only a very strong equity in his favor, but there was also an express agreement that the Mitchell judgment and Goss judgment should be kept alive for his benefit.
The general rule undoubtedly is, that where equity requires it, a lien will be kept alive. Hanlon v. Doherty,
• These authorities require that it be held that the payment by the appellee of the Mitchell and Goss judgments was a satisfaction, notwithstanding thе assignment to him of those judgments.
The appellee contends that the appellants are concluded by a judgment rendered in his favor in an action against Harmon C. Vickery and Eli D. Whittaker. One of the findings of the jury, which was adopted by the court, is, that “ the plaintiffs did appear and make defence to the case tried in this court between Charlеs W. Vickery, as plaintiff, and Harmon C. Vickery, as defendant, in the name of said defendants, in said case for their own benefit, that is, for the benefit of the plaintiffs, Montgomery and Henry.” The case referred to was brought by Charles W. Vickery to estаblish his right to an execution, and he prevailed.
It has been repeatedly held that even after judgment one who оccupies the relation of surety may have that fact established and an order for an execution in lys favor. Scherer v. Schutz, 83 Ind. 543; Harker v. Glidewell,
The remaining question is, was the judgment conclusive as to the appellants? The special finding of facts, in the absence of any attack upon it by a motion for a new trial, imports to us absolute verity, and we must, therefore, assume that it is truе that the appellants did appear to and defend that action. If they did this they have had their day in court, and аre concluded by the judgment. A party who actually appears and defends in the name of another, is bound by the judgmеnt. Mr. Freeman quotes with approval these words: “Neither the benefit of judgments on the one side, nor the obligations оn the other, are limited exclusively to parties and their privies.” Freeman Judgments, section 174.
In Stoddard v. Thompson,
It is not proper to inquire in this collateral proceeding whether the court did right or wrong in permitting the appellants to appear and defend in their own name instead of in the name of Harmon C. Vickery, for, if they did in fact appear and defend, they are bound by the judgment. If any error was committed in refusing to permit them to defend in their own name, their remedy was by appeal, and they can not, after having elected to defend in the name of the judgment debtor through whom they claim, be heard to affirm that the judgment does not affect them.
There is no motion for a new trial, and we can not examine any questions made upon the admission or exclusion of evidence.
Judgment affirmed.