Moore v. Lassiter

84 Tenn. 630

• Court: Tennessee Supreme Court
• Decided: April 15, 1886
• Status: Published

Opinions

Cooper, J.,

delivered the opinion of the court.

B. M. Taylor recovered a judgment before a justice of the peace against W. A. Ridley, E. G. Wood and J. N. Moody, on a promissory note executed to him by Ridley as principál, and by the other two defendants as sureties. W. F. Blakemore became a stayer on the judgment, the entry on the justice’s docket reciting that he was “stayer for all the parties.” Afterward, upon his petition for the purpose, Blakemore obtained writs of eertiorari and supersedeas to bring the case into the circuit court, and to supersede an execution on the judgment which had been levied on certain personalty as his property, upon giving a bond with security in double the amount of the judgment, conditioned to prosecute the writ with effect, or perform the judgment which shall be rendered in the cause. Upon the motion of the plaintiff in the judgment, the petition was dismissed, and a judgment rendered against Blakemore. and his sureties on the bond for the debt, interest and costs. J. M. Moore, the intestate of complainant J. H. Moore, was one of these sureties. Blakemore alone prayed an appeal to the Supreme Court, which was granted upon his giving bond with security, in double the amount of the judgment, conditioned to abide by and perform the judgment, sentence or decree of said Supreme Court in the premises. The judgment was affirmed by the Supreme Court, and a judgment rendered against Blake-more and the sureties, both on the eertiorari and the appeal bond, for the debt, interest, cost of the circuit court, and cost of the Supreme Court. The defendant, A. J. Lassiter, was one of the sureties on the appeal bond. The judgment was against J. M. Moore as surety on the eertiorari bond, and against A. J. Las-siter as surety on the appeal bond. J. M. Moore paid the judgment. The present bill was filed by J. H. Moore, as administrator of J. M. Moore, who had died, to hold Lassiter primarily liable, as between him and J. M. Moore, for the amount thus paid, and to be subrogated to the rights of Blakemore, as stayer of the justice’s judgment, against -the defendant, J. N. Moody. It also sought to set aside a fraudulent conveyance of property made by Lassiter, and to subject the property to the satisfaction of the recovery. On final hearing, the chancellor dismissed the bill as to Moody, being satisfied from thé proof that Blake-more had not stayed the justice’s judgment at his instance. But the chancellor was of opinion that the complainant was entitled to the relief sought as against Lassiter, and rendered a decree accordingly. Both parties appealed from the decree, the appeal of Moore being limited to that part of the decree releasing Moody. The Referees report that the decree should be affirmed as to Moody, but reversed as to Lassiter. The complainant excepts.

The right of the complainant to relief against Moody turns upon a question of fact. Did Blakemore stay the justice’s judgment at the request, or with the consent of Moody? The chancellor and the Referees both find that he did not, and in this conclusion we concur. Blakemore himself testifies that Moody was opposed to staying the judgment, and that he, Blake-more, acted upon the suggestion of Wood, the other surety, who was a partner of Moody and present at the interview, that it would be all right. Wood was anxious that the judgment should be stayed, and made the suggestion after Moody had left him and Blake-more. As he turned off Moody made some remark, not in itself amounting to an authority to Blakemore to stay the judgment for him, but from which, Blake-more says, he drew the inference that he might do it. The evidence is insufficient against Moody’s positive denial.

The question on the other branch of the case is whether Lassiter, by becoming surety on the appeal bond, made himself primarily liable for the judgment and costs of the Supreme Court before the surety on the certiorari bond. It is conceded that a surety of appeal is liable before an original surety on the debt, against whom and his principal judgment has been rendered in the lower court, who does not appeal from the judgment, although his name be signed without authority to the appeal bond, and the judgment of the appellate court be rendered against him: Coles v. Anderson, 8 Hum., 489; Briggs v. Hinton, 14 Lea, 233. So is the surety, at the instance of the principal alone, for the stay of execution: Chaffin v. Campbell, 4 Sneed, 184. So is the surety on a delivery bond in which the original surety refuses to join: Brown v. McDonald, 8 Yer., 158. And the rule is general that one who becomes surety in the course of legal proceedings against the principal has no right of contribution against the original surety for the debt, but, on the contrary, the latter is entitled to be subrogated to the creditor’s right against him: Tennessee Hospital v. Fuqua, 1 Lea, 612, and cases there cited. The reason for all these rulings is that the new surety, by joining the principal in a bond by which he obtains time in the collection of the debt, changes the terms upon which the original surety was bound, and prejudices his rights. . The result is precisely the same as if the debtor hád obtained time by giving a new obligation with new sureties, so far as the original surety is concerned.

But the same reason, under the same circumstances, equally applies to a surety who becomes such after the creation of the original debt, and of course to an earlier surety in the course of legal proceedings, or to any person upon whom the character of surety is cast by the nature of the transaction, or by law. It has accordingly been held by the court of appeals of New York that a purchaser of land, who is compelled to pay a judgment against his vendor which was a lien on the land, and of which he was ignorant, was so far a surety of the vendor that a release by the judgment creditor of the sureties of appeal of the judgment debtor, in the suit brought to collect the debt, discharged the judgment lien; Barnes v. Mott, 6 N. Y., 397. “The sureties upon the appeal,” say the court, “intervened as volunteers, and by their interposition got time for the principal debtor, to the prejudice of the prior sureties, and of the plaintiffs whose lands were bound for the judgment, and they must be considered in equity as in the same condition as any other sureties undertaking for the payment of the judgment. Their obligation enured to the benefit, not only of the creditors, but of any and all who had become before them in any way sureties for the payment of the debt. There is no distinction recognized between those originally bound, and those becoming bound by some subsequent act.” The same high court has applied the doctrine to the case of sureties in legal proceedings, where one set of the sureties become bound for the judgment of an intermediate court, and the other set become subsequently liable for the judgment of the court of appeals. The latter sureties, say the court, secured delay by agreeing to pay the judgment. The earlier sureties may have been injured, and justice would seem to demand that, between parties thus situated, the primary liability should rest upon those who intervened to procure the delay. Upon the affirmance of the judgment by the intermediate court, the first sureties had a right to pay the same, and to be substituted to the rights of the plaintiff in the judgment, and to enforce the same against the defendant. In that case, upon appeal to the court of appeals, the undertaking would necessarily enure to the benefit of the first sureties as equitable owners of the judgment, and upon affirmance in the court of appeals they could enforce it against the second sureties. The latter agreed, upon the contingency of affirmance, to stand in the place of their principal, and to pay the judgments. In effect they became sureties to the first set of sureties: Hinckley v. Kreitz, 58 N. Y., 583. The same principle, in a case involving the equity between sureties, was recognized in McCormick v. Irwin, 35 Penn. St., 111.

These principles are denied by the learned counsel of the defendant. Nor do they claim that there is any ease for contribution between sureties, for the obvious reason that there, can be no contribution except where the sureties are bound for the same liability: 1 Lea, 612. What they do contend for is, and so the Referees find, that the appeal of Blakemore made the sureties on the certiorari bond also appellants, and the surety of appeal became their surety. If the sureties on the certiorari bond were not appellants, the case would therefore fall within the' general rule.

The appeal from the judgment of the circuit court was taken by Blakemore alone, and the sureties on the appeal bond bound themselves for his acts alone. The sureties on the certiorari bond neither prayed nor obtained an appeal, nor joined in an appeal bond, all pre-requisites to an appeal. To treat them as actual appellants, under these circumstances, would be a plain violation of the statutes. Nor is it at all necessary to resort to such a tour de force to bring these sureties before the appellate court. The appeal or appeal in error of the principal vacates or suspends the judgment, not only as to him but as to his sureties, who are only liable in the event the judgment is enforceable against the principal. And by a statute of an early date, brought into the Code, all bonds and recognizances taken according to law in the appellate court, or in the court below, in the progress of a cause, form a part of the record, and judgment may be rendered thereon by the appellate court, to the extent of the respective liabilities of the parties, upon motion, without scire facias or notice: Code, secs. 3109, 3137, 3161, 3166, 4499. In case of successive appeals, or successive proceedings for the correction of errors, the court finally determining the cause renders such judgment on the bonds for an intermediate appeal as should have been rendered by the court to which the appeal was taken: Howell v. Sevier, 1 Lea, 95; Dawson v. Holt, 12 Lea, 27.

In the earliest case in which the statute requiring a copy of an intermediate bond to be made a part of the record was considered, the court seems to have bad some difficulty in settling the principle which should control its construction, and, while recognizing the fact that no appeal was ever taken by the sureties, and that their names were never used in the cause, appear to think that the end proposed by the statute could only be attained by treating the principal as the agent of the sureties, and his appeal as the appeal of the sureties: Stump v. Sheppard, Cooke, 191. The same difficulty was taken under consideration in Whiteside v. Hickman, 2 Yer., 358, where each of the three judges gives a separate opinion, assigning different reasons for the faith that was in him. Judge Catron adhered to the practice of the Cooke case, the only question before the court being whether the appeal of the principal gave jurisdiction to render a judgment on an intermediate bond. Judge Peck thought that the principal might be considered as the agent of the sureties for the purpose of an appeal, unless the latter dissented in the court below and severed from the appeal or writ. Judge Whyte dissented from the views of both of his brother judges, upon the ground that there could be no appeal by the sureties except by actually joining in praying for, and perfecting it, and that it would be absurd to hold them liable by mere intendment. The truth is, the sureties are brought up to the appellate court by the bond executed by them, which is made a part of the record by statute, and upon which, and not upon the judgment below, the judgment of the appellate court is rendered. This is made plain by two considerations. In the first place, the judgment of the inferior court may be in favor of the sureties, and yet the higher court, upon the appeal of either of the principal litigants, may render such judgment against the sureties as the court below should have rendered. In the second place, if the sureties for an intermediate appeal are to be treated, upon the appeal of their principal to a higher court, as appellants, the same judgment would be rendered against them by the higher court as against their principal. But it was early settled, and has been invariably held, that the judgment of the higher court against such sureties was only such a judgment as the court below should have rendered: Hawkins v. Thornton, 1 Yer., 136; Kennedy v. Jack, 1 Yer., 82; Duncan v. McGee, 7 Yer., 103; Howell v. Sevier, 1 Lea, 95; Dawson v. Holt, 12 Lea, 27. And it need scarcely be said that no dissent of the sureties in the court below, or severance from the appeal or writ, would prevent the sureties from going up to the higher court, .not by the appeal, but by their bond, which the statute makes a part of the record, and authorizes a judgment to be rendered upon.

The appeal of the principal alone does not make the sureties appellants, any more than the appeal of the opposite party. No matter by whom the appeal is taken, the sureties are before the appellate court, by their bond, under the statute. And the sureties can not prevent this by any thing they may do. They may, of course, join in the appeal, and thereby make themselves liable as principals, as was done in Cowan v. Duncan, Meigs, 470. In all other eases, they are in court by their bond, and their liability is limited, as the universal rule of suretyship, by the terms and conditions of their bond.

The proper judgment, on the Blakemore appeal to this court, against the sureties on the certiorari bond, would have been for the amount of the judgment of the circuit court and the costs of that court, and against the sureties of appeal for the entire amount of the debt and costs adjudged by this court against their principal. But the complainant can not be prejudiced by the form of the judgment, as between him and the defendant, Lassiter: Briggs v. Hinton, 14 Lea, 233; Coles v. Anderson, 8 Hum., 489. The latter is primarily liable, as between them, for the entire debt and costs paid.

The report of the Referees will be modified accordingly, and the decree of the chancellor affirmed. The costs of this court will be paid, one-half by the complainant, and the other half by the defendant Lassiter. The costs below, and future costs incurred in executing the decree, will be paid as ordered by the chancellor.