84 Tenn. 630 | Tenn. | 1886
Lead Opinion
delivered the opinion of the court.
B. M. Taylor recovered a judgment before a justice of the peace against W. A. Ridley, E. G. Wood and J. N. Moody, on a promissory note executed to him
The right of the complainant to relief against Moody turns upon a question of fact. Did Blakemore stay the justice’s judgment at the request, or with the consent of Moody? The chancellor and the Referees both find that he did not, and in this conclusion we concur. Blakemore himself testifies that Moody was opposed to staying the judgment, and that he, Blake-more, acted upon the suggestion of Wood, the other surety, who was a partner of Moody and present at the interview, that it would be all right. Wood was anxious that the judgment should be stayed, and made
The question on the other branch of the case is whether Lassiter, by becoming surety on the appeal bond, made himself primarily liable for the judgment and costs of the Supreme Court before the surety on the certiorari bond. It is conceded that a surety of appeal is liable before an original surety on the debt, against whom and his principal judgment has been rendered in the lower court, who does not appeal from the judgment, although his name be signed without authority to the appeal bond, and the judgment of the appellate court be rendered against him: Coles v. Anderson, 8 Hum., 489; Briggs v. Hinton, 14 Lea, 233. So is the surety, at the instance of the principal alone, for the stay of execution: Chaffin v. Campbell, 4 Sneed, 184. So is the surety on a delivery bond in which the original surety refuses to join: Brown v. McDonald, 8 Yer., 158. And the rule is general that one who becomes surety in the course of legal proceedings against the principal has no right of contribution against the original surety for the debt, but, on the contrary, the latter is entitled to be subrogated to the creditor’s right against him: Tennessee Hospital v. Fuqua, 1 Lea, 612, and cases there cited. The reason for all these rulings is that
But the same reason, under the same circumstances, equally applies to a surety who becomes such after the creation of the original debt, and of course to an earlier surety in the course of legal proceedings, or to any person upon whom the character of surety is cast by the nature of the transaction, or by law. It has accordingly been held by the court of appeals of New York that a purchaser of land, who is compelled to pay a judgment against his vendor which was a lien on the land, and of which he was ignorant, was so far a surety of the vendor that a release by the judgment creditor of the sureties of appeal of the judgment debtor, in the suit brought to collect the debt, discharged the judgment lien; Barnes v. Mott, 6 N. Y., 397. “The sureties upon the appeal,” say the court, “intervened as volunteers, and by their interposition got time for the principal debtor, to the prejudice of the prior sureties, and of the plaintiffs whose lands were bound for the judgment, and they must be considered in equity as in the same condition as any other sureties undertaking for the payment of the judgment. Their obligation enured to the benefit, not only of the creditors, but of any and all who had become before them in any way sureties for the
These principles are denied by the learned counsel of the defendant. Nor do they claim that there is
The appeal from the judgment of the circuit court was taken by Blakemore alone, and the sureties on the appeal bond bound themselves for his acts alone. The sureties on the certiorari bond neither prayed nor obtained an appeal, nor joined in an appeal bond, all pre-requisites to an appeal. To treat them as actual appellants, under these circumstances, would be a plain violation of the statutes. Nor is it at all necessary to resort to such a tour de force to bring these sureties before the appellate court. The appeal or appeal in error of the principal vacates or suspends the judgment, not only as to him but as to his sureties, who are only liable in the event the judgment is enforceable against the principal. And by a statute of an early date, brought into the Code, all bonds and recognizances taken according to law in the appellate court, or in the court below, in the progress of a cause, form a part of the record, and judgment may be rendered thereon by the appellate court, to the extent of the respective liabilities of the parties, upon motion, without scire facias or notice: Code, secs. 3109, 3137, 3161, 3166, 4499. In case of successive
In the earliest case in which the statute requiring a copy of an intermediate bond to be made a part of the record was considered, the court seems to have bad some difficulty in settling the principle which should control its construction, and, while recognizing the fact that no appeal was ever taken by the sureties, and that their names were never used in the cause, appear to think that the end proposed by the statute could only be attained by treating the principal as the agent of the sureties, and his appeal as the appeal of the sureties: Stump v. Sheppard, Cooke, 191. The same difficulty was taken under consideration in Whiteside v. Hickman, 2 Yer., 358, where each of the three judges gives a separate opinion, assigning different reasons for the faith that was in him. Judge Catron adhered to the practice of the Cooke case, the only question before the court being whether the appeal of the principal gave jurisdiction to render a judgment on an intermediate bond. Judge Peck thought that the principal might be considered as the agent of the sureties for the purpose of an appeal, unless the latter dissented in the court below and severed from the appeal or writ. Judge Whyte dissented from the views of both of his brother judges, upon the ground that there could be no appeal by the sureties except
The appeal of the principal alone does not make
The proper judgment, on the Blakemore appeal to this court, against the sureties on the certiorari bond, would have been for the amount of the judgment of the circuit court and the costs of that court, and against the sureties of appeal for the entire amount of the debt and costs adjudged by this court against their principal. But the complainant can not be prejudiced by the form of the judgment, as between him and the defendant, Lassiter: Briggs v. Hinton, 14 Lea, 233; Coles v. Anderson, 8 Hum., 489. The latter is primarily liable, as between them, for the entire debt and costs paid.
The report of the Referees will be modified accordingly, and the decree of the chancellor affirmed. The costs of this court will be paid, one-half by the complainant, and the other half by the defendant Lassiter. The costs below, and future costs incurred in executing the decree, will be paid as ordered by the chancellor.
Dissenting Opinion
The question in this ease is, whether Moore is entitled to recover of Lassiter the amount of a judgment of this court paid by the former. The facts are: “ Blakemore obtained writs of certiorari and super-sedeas to bring a case into the circuit court, an execution having been levied on certain personalty of the property of said Blakemore.. J. M. Moore gave the usual prosecution bond, as surety for Blakemore, conditioned to prosecute the writ with effect, or perform the judgment which should be rendered in the cause.” The circuit court dismissed the writs and rendered judgment against Blakemore and his surety for the debt and costs. Thereupon, Blakemore appealed to the Supreme Court, where the judgment of the court below was affirmed, and a judgment rendered against Blakemore and Moore as his surety, as in the circuit court, and also for costs of Supreme Court and interest by way of damages, also a judgment against Lassiter on the appeal bond. Moore paid this judgment, and now files this bill for reimbursement. by Lassiter. The question is, has he an equity or legal right to such recovery? This, I think, depends on the question, whether Moore has paid a judgment or discharged a legal liability, which was not a primary one on him, by reason of the legal obligation of his bond under the facts stated, or was not included in his undertaking when he signed it. The main theory of the opinion heretofore delivered is, that the contract of Moore, the surety on the certiorari bond, has been
By our Code (T. & S., section 3137), M. & V., section 3853), it is provided, in cases of appeal, that is, by the principal, “ upon affirmance of the judgment or decree below, or recovery of a larger amount, or for dismissal of the certiorari for want of prosecution, or for any other cause, the court shall enter up judgment for the amount recovered against the principal and the sureties to the prosecution bond, with interest, etc., from the date of the judgment or decree below;
In view of these provisions, and our decisions on them, does it not. follow, that when J. M. Moore signed the bond, the law of his undertaking was, that he should abide by and perform the judgment that might be rendered in the case according to the existent law, the settled' construction of which was and is, that he should be liable to a judgment in this court, on appeal of his principal, for such judgment as the court below ought to have rendered; that is, on dismissal of certiorari, for- the debt as it' then existed in the circuit court, and for the costs of that court, and that without notice? His undertaking fixed the liability, and so he is not to be notified. As properly said, in Judge Cooper’s opinion in this case, the judgment of this court was erroneous in giving it for the costs of this court, and as I think, probably also wrong in rendering it for interest, as that was probably included in the appeal bond given for appeal to this court. Certain it is, the costs of the appeal could not properly be adjudged against him here: 11 Lea, 506
If he desired a release from the liability incurred, the law provided a remedy for him by giving five days’ notice to his principal of his motion, and a motion or rule to give counter security to indemnify him against liability as surety: Code (M. & V.), sec. 4415. And by next section it is provided, “ on failure to comply with the rule, the court will dismiss the suit and give judgment against the principal and surety for the costs already accrued.” The plaintiff, however, may, in such cases, prosecute his suit in forma pauperis, in which the surety will only be liable for costs accruing up to the time of giving the notice.
In support of the main proposition, I add here, suppose the principal in this case had appealed to the Supreme Court in jorma pauperis, would not Moore have been liable, no release having been had in the court below, to a judgment for debt and costs, pre
The case of Coles v. Anderson & Griswell, 8 Hum., 488, has no analogy to the case now under consideration. It was a suit against the principal and his accommodation, endorser, in which the endorser employed no attorney; an appeal from the judgment rendered was prosecuted, and the name of the endorser placed on the bond, the signing and prayer for appeal being unauthorized. It was simply held , that he was
It is proper to add, that I do not think the fact that the remedy or right is placed on the ground of subrogation changes the principle in the slightest. It is still a question, whether on the facts complainant has an equity to be reimbursed on the facts' of this case, and whether you give the relief directly or by subrogation to the right of the creditor, goes only to the form or process by which the end is reached, and
Rehearing
PETITION TO REHEAR.
Upon petition to rehear,
said:
In the opinion delivered in this case at a former day of this term, it was held that a person who becomes the surety of the principal debtor, in the course of legal proceedings to collect the debt, makes himself liable before any prior surety for the debt, and, there
The learned counsel of the defendant, in the petition for rehearing which he has presented and accompanying argument, takes the illustration in the last clause cited as if it were the case decided, and the change of terms mentioned as meaning the same in two distinct classes of eases, and, having thus built up a man of straw, undertakes to demolish it. The distinction between successive obligations made binding by law without the creditor’s assent, and similar obligations made by direct contract with the creditor, is overruled, and consequently the distinction between exoneration and subrogation. A contract made by the
Upon the idea that they are the same, the argument in support of the petition for rehearing insists that the terms of the contract of the complainant’s intestate on the certiorari bond were not changed by the execution of the appeal bond by the defendant. And it is clear that those terms are not altered, so far as the creditor is concerned. Neither were they
Our courts, in all the cases like the one before us, have recognized the principle laid down in the leading case of Dering v. Earl of Winchelsea, 1 Cox, 318, that one who becomes surety in the course of legal proceedings against the principal has no right of contribution against the original surety for the debt, but on the contrary, the latter is entitled to be sub-rogated to the creditor’s rights against him. The principle was quoted with approval by Judge McKinney, in Chaffin v. Campbell, 4 Sneed, 184, and would have controlled the ruling in that case if the statute itself had not provided for the respective liabilities of the original surety and the stayer. It was recognized in McNeilly v. Cooksey, 2 Lea, 43, and Tennessee Hospital v. Fuqua, 1 Lea, 612, and is expressely adopted as
The petition makes the point that .the equity of the surety will not arise if he consent to the giving of the new security, and that upon the pleadings in this case, the bill alleging the absence of such consent and the answer denying the allegation, the burden of proof is on the complainant, and he has made none. The counsel produces the syllabus of a recent decision of the supreme commission of Ohio to this effect, where the suit was by the creditor against the surety, and the latter pleaded in defense an extension of time given by the principal: Bramble v. Ward, 18 Am. L. Rev., 178. But even if it be conceded that thi$ is the correct rule as between the creditor and the surety upon such a state of the pleadings, where the surety is prima faeie liable upon the instrument sued on, it can have no application to a suit between successive sureties in the course of legal proceedings, there being no written or other positive contract between the parties, and the party, against whom the implication of liability primarily attaches, is seekiug to relieve himself and cast the burden upon the prior surety. All of our authorities assume, if they do not directly decide, that the primary liability
The point is also made that, under our decisions, a contract for delay, after judgment, will not release the sureties, citing Peay v. Poston, 10 Yer., 112, and other cases. But the argument is based upon the identity of the case of a surety released by the act of the creditor, and the case of successive sureties. The two cases, as we have seen, are not identical, and the analogy misleading. The surety ceases to be such, so far as the principal is concerned, in the matter of delay or giving time by contract. But our authorities are uniform, that as between successive sureties, the fact of suretyship is as open to inquiry after, as before judgment.
It is contended, lastly, that there has been an officious payment of a part of the debt, under the ruling of Briggs v. Hinton. But in that case, the judgment of the Supreme Court was void as to Briggs, who did not sign or join in the appeal bond, the ruling being directly put upon that ground; while in this case the judgment against the complainant’s intestate, he being before the court, was merely erroneous.
The petition for rehearing must be disallowed.