79 Neb. 404 | Neb. | 1907
On May 11,1900, Frank Sturgis obtained a judgment in the district court for Douglas county against Martin B. Miller, the Hinman Improved Can Company, and the Helm Building & Supply Company upon a bill of exchange. In conformity with the findings of the court, the judgment was entered against the Hinman company as principal and the Helm company and Miller as sureties. Ten days
Plaintiff herein, as assignee of the judgment creditor, brought this action in the district court for Seward county against the defendants, who constitute the Helm company, a partnership firm, to subject their property to the Douglas county judgment of December 7, 1900. The validity of that judgment is assailed on the ground that the judgment of May 11, 1900, was not set aside as to the Helm company, and the court had no jurisdiction over it in the proceeding of its codefendant for a new trial. The language of the order of the court vacating the judgment against the Hinman company, above set out, did not expressly vacate the judgment against the Helm company. The question at issue is: Did such order ipso facto set aside the judgment as to all the debtors, or was the moving defendant alone released? If the judgment of May 11, 1900, remained in full force against the Helm company, the judgment subsequently rendered is void, and the plaintiff’s present action must fail.
In this state a judgment obtained against a principal and a surety is considered a joint judgment. See Farney
A different rule obtained under our former statute in a proceeding to review the judgment of the lower court by petition in error. Such proceeding was in the nature of an independent action. All parties must be brought into
The foregoing authorities and statutes cited have established in this state the rule that a judgment is not considered an entirety unless the interests of the judgment debtors are inseparable. If the interest of the defendants against whom the judgment of May 11 was rendered was not inseparable, then they were permitted each to prosecute his own defense and present his own theory independently of the other, and procure a new trial of the issues in which he is interested without affecting the liability of his codefendant. He would have the same right alone to move in the court rendering the judgment as he would have under like issues to appeal from an inferior court to the district court. But with inseparable interests, proceedings to vacate by one would carry the entire, case with it.
It will be observed that the judgment of May 11, 1900, fixes the liability of the Hinman company as principal and the Helm company as surety. Plaintiff cites authorities to the effect that the liability of a surety is dependent upon and inseparable from the interest or liability of the principal, and that, when joined in an action and judgment rendered against them, the' judgment became an entirety. In Van Renselaer v. Whiting, 12 Mich. 449, it appears that Yan Renselaer recovered a judgment against John L. Whiting and J. Tallman Whiting. The latter moved that the judgment be vacated as to him, and the court entered the following order: “A motion to set aside the judgment in this cause having been argued by counsel, and submitted, and the court having duly considered the same, it is ordered that said motion be, and the same is hereby, granted and that the judgment heretofore entered in this cause, be and the same is hereby, set aside and vacated, as to the defendant J. Tallman Whiting.” In reviewing the case the supreme court of Michigan said: “The effect of vacating the judgment as to J. Tallman Whiting was to vacate it as to the other defendant also;
: he appeal brought the entire case to the district court, and chat court, upon a trial resulting in favor of the plaintiff, had jurisdiction to render judgment against all the defendants.” In the opinion it Avas further said: “I think it sufficiently settled, in this state at least, that, Avhere the interests of the parties are inseparably connected in an action, an appeal by one will remove the cause to the appellate court for all. Lepin v. Paine & Co., 18 Neb. 629, and cases there cited. Durias Wilcox was the principal debtor upon the note; any defense mady by him inured to the benefit of his sureties, and therefore the appeal, even if taken by him alone, and without express authority from the other defendants, removed the cause into the district court as to all.”
From this it seems that the interest of a surety was so dependent upon and inseparable from the interests of his principal that a proceeding on appeal carried Avith it the judgment as an entirety, giving the court jurisdiction over the sureties who did not appeal. This case was cited Avith approval in Polk v. Covell, 43 Neb. 884, above cited, Avhere it was held that an appeal by an alleged surety did not remove the judgment as to the principal. The reason for the different application of the rule seems to be that a surety may have a defense which cannot avail Ms principal, such as a denial of the suretyship, which must be determined independently of the principal’s liability. In Polk v. Covell, supra, it is said: “It is evident, therefore, that the result of the appeal cannot affect the liability of
It is true that by the judgment of December 7, the alleged principal was released and the Helm company held as principal and not as surety, thereby establishing that the relationship of principal and surety never in fact existed; and, moreover, making it now appear that the interests of the judgment debtors were separable. But their relative interests cannot be determined in this suit. Here the only question for determination is the effect of the order of the district court vacating the judgment of May 11. The status of the parties as then existing controls. They were adjudged jointly liable to the plaintiff in the judgment decreeing the Helm company a surety, thereby binding its interests inseparably to those of its codefendant. This being their status, the vacating of the judgment against the Hinman company ipso facto vacated it as to all, and the court retained jurisdiction over all the defendants.
We think the learned trial court reached the right conclusion in this case, and recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is
Affirmed.