Duffield ex. rel Jackson v. Cooper , 87 Pa. 443 ( 1879 )

Mr. Justice Mercuii

delivered the opinion of the court,

Cooper and Jackson made their joint note to Duffield, with warrant of attorney to confess judgment. Although not shown on the face of the note, yet in fact, Jackson signed as surety for Cooper. Judgment was entered on the note and execution issued. Jackson paid the debt, interest and costs to the plaintiff’s attorney, and on the back of the execution took from him an assignment of the judgment. As the attorney is not shown to have been authorized to make the assignment, and it does not appear that his act therein was ratified, the invalidity of the assignment may be conceded. The fact, however, that Jackson took the assignment at the time he made the payment, is evidence that he did not intend to extinguish the debt. The right of a surety in a judgment, to collect it of his principal, after the former has paid it, is well settled by numerous decisions: Wright v. Grover et al., 1 Norris 80. An actual assignment to the paying surety is not necessary. The right of substitution being shown, and the surety having paid the debt, he succeeds by operation of law to the rights of the creditor: Id. Jackson was therefore entitled to collect the judgment of Cooper. The learned judge appears to have thought that the paying surety must have been subrogated under the 9th section of the Act of 22d April 1856. That act applies to judgment liens on real estate, and is intended to adjust and protect the equities of persons holding such liens. It was not designed to settle the rights, nor to prescribe the remedies between surety and principal.

The other question relates to the form of the execution. It is undoubtedly true as a general rule that the execution must follow the judgment. That is, if the judgment be joint the execution should be against all of the defendants therein. This rule, however, is not so inflexible as to prevent its being modified by the special circumstances of the case. Thus in a joint judgment against sevéral, one of whom is an infant, the court will set aside the execution as to him; yet, permit it to go on as against the others, and sell their property. So if one of the defendants be a feme covert, and not liable on the judgment, the execution may be set aside as to her, but suffered to proceed against the other defendants in the judgment. Again, if one joint defendant in a judgment die, execution goes against the survivors. The Act of 18th April 1861, declares, “ no civil process shall issue or be enforced against any person mustered into the service of this state or of the United States.” Sheetz et al. v. Wynkoop et al., 24 P. F. Smith 198, was the case of a judgment against several defendants, one of whom had been mustered into the services of the United States, and thereby entitled to the protection of the act. It was there said by our late brother Williams, that doubtless on suggesting the fact of such service, execution might have been sued out against the other defendants. In the present case it would be the merest technicality to require the use party plaintiff to issue an execution against himself. The receipt ancl assignment of record on the execution showed he had paid the whole judgment. Thus the record showed why the execution went against Cooper alone. He has no equitable ground of complaint. In case he was not liable for the whole judgment, as between him and Jackson, the court should have restrained the execution to the collection of such portion as in equity he ought to pay. But being liable for the whole, he has no standing to invoke the equitable power of the court. The fact of the payment of the whole judgment by the use plaintiff, appearing of record, precluded the collection of any part of it from him again. The defendant had paid none of it, although legally liable for the whole. Under all these facts, we do not think it fatal to the execution, that it went against the only defendant liable for its payment. The learned judge therefore erred in making absolute the rule to show cause why the lien and execution should not be set aside.

Judgment reversed, and the rule is discharged.