Parnell v. Hancock

By the Court, Wallace, C. J.: Gorman had recovered a judgment against Black; the latter thereupon took an appeal to the County Court, Porter becoming one of his sureties, and upon trial had in that Court, judgment had again been rendered against Black. Gorman thereupon assigned to Parnell, the plaintiff here, the judgment and the undertaking on appeal given in the Black case, and the plaintiff, as assignee of Gorman, subsequently recovered judgment in his own name against Porter on the undertaking on appeal. From this judgment Porter, having appealed to the County Court, and the defendants here having become his sureties on the appeal, judgment was rendered in the latter Court against Porter, and in favor of the plaintiff, Parnell, but directing a stay of execution against Porter until the plaintiff should assign to Porter the judgment against Black, which the plaintiff held by assignment from Gorman.

These facts (and the further fact that Parnell had not assigned to Porter the judgment against Black), appearing by the pleadings, the Court below, upon motion, gave judgment for the plaintiff. We think, however, that in this there was error.

Before the defendants, as sureties of Porter, can be sued, Porter, their principal, must himself have become absolutely liable to pay the judgment in the County Court. It is true, as observed by the counsel for the respondent at the argument, that under the law as settled here it would not be necessary for the plaintiff to have actually issued an execution against Porter before he could maintain an action against the defendants as his sureties in the undertaking on [455]appeal. But it is equally clear that, unless the case be in such a condition as that the plaintiff might have issued an execution against the principal, had he desired to do so, he cannot proceed against the sureties on the appeal. To hold that he could, would be to place the sureties in a position apparently less favorable than that occupied by their principal. Besides, it would be to allow the plaintiff, while proceeding in this action, upon the judgment of the County Court, to wholly ignore that portion of it by which satisfaction was denied to him, until he should make to Porter the assignment therein mentioned. We have, in considering the case, assumed, of course, that the direction found in the judgment of the County Court, that Parnell assign the Black judgment to Porter, is valid in point of jurisdiction. We so held it when the judgment was lately before us upon certiorari.

judgment and order denying new trial reversed, and cause remanded.. ¡Remittitur forthwith.