Lawrence County National Bank v. Gray , 23 Pa. Super. 62 ( 1903 )

Per Curiam,

This is an appeal from an order discharging a rule to show cause why a judgment entered against William H. Gray upon a note with warrant of attorney for confession of judgment signed by him and H. G. Kimmich, the use-party, should not' be vacated, set aside and stricken off. The rule was granted upon the petition of the wife of William H. Gray. It was alleged in the answer that H. G. Kimmich was surety on the note, and, having paid it, took an assignment to himself. The general rule is well settled that if a surety has paid the debt he is entitled to all the securities the creditors had against the principal debtor. Where the security is a judgment note we are by no means willing to hold that in order to obtain the benefit of it the surety who has paid the debt must enter judgment against himself. But apart from this, the judgment was in personam, it affected no right of the defendant’s wife, and there is no allegation in the petition that she had any authority to appear for him to contest it. She being a stranger to the record, the court might well have refused to entertain the petition, and certainly committed no error in discharging the rule. The case of Johnson v. Fullerton, 44 Pa. 466, relied on by the appellant’s counsel, has no application to the facts of this case.

Order affirmed and appeal dismissed at the appellant’s costs.