Davis v. Heimbach

Hayne, C. —This is an appeal by defendants, McDaniel and Miller, from an order quashing an execution issued at their instance against their co-defendants, Wiles and Ludy.

It appears that these four parties were sureties upon a note of defendant Heimbach to the plaintiff Davis, and were all defendants in the action, which was upon the note. Judgment having been entered against them, McDaniel and Miller paid the whole amount, and then, under section 709 of the Code of Civil Procedure, took out a writ of execution against their co-defendants, Wiles and Ludy, for their proportion. This ■ execution was quashed by order of the court, and from this order the appeal is taken.

The section referred to provides that contribution may be enforced in this summary manner “if within ten days after his payment” the party files a notice, etc. The whole sum paid was $5,600.58. Of this, $3,354,30 was paid on May 18th, and the remainder not until June 24th. The notice and claim were filed on June 27th. It is open to doubt whether such filing was “within ten days after his payment.” For, the proceding.being statutory, the course pointed out by the statute must be strictly pursued. (Hansen v. Martin, 63 Cal. 282.) But without expressing an opinion upon this point, we think there are other grounds upon which the order should be affirmed.

1. The order directing the issuance of the execution was obtained without notice to the parties to be affected by it. We have not been referred to any decision in relation to the section under which the proceedings were taken. But there are several decisions in relation to section 942, which provides for the entry of [263]judgment against sureties on appeal bonds. In Ladd v. Parnell, 57 Cal. 232, the court said that it saw nothing in the point that that section was unconstitutional. But in that case it appears from the opinion that notice had been given, and from the argument of counsel it would seem that the point in which the court could see nothing was, that the sureties were entitled to a trial by jury.

In the subsequent case of Meredith v. S. C. M. A. of Baltimore, 60 Cal. 617, it was held that the sureties on an appeal bond were not entitled to notice of an application for judgment against them. The ground of the decision seems to have been that the section did not provide for notice, and that it must be presumed that the sureties contracted with reference to existing law, which therefore entered into and formed a part of their contract. It is to be observed of this case that the statute construed does not in terms dispense with notice. It is simply silent upon the subject. And if it be true that, when taken in connection with other provisions of the same code (secs. 1005 and 1011), it does not provide for notice, yet it is deserving of consideration, whether, in view of the importance of an opportunity to be heard,— a right which almost always exists,—it ought not to be presumed that the parties contracted with reference to it, and that it formed a part of their contract. To say otherwise is to dispense with a fundamental and important right by a somewhat strained application of an artificial rule of construction of a contract.