Waller v. Campbell , 25 Ala. 544 ( 1854 )

CHILTON, C. J.

The Circuit Court did not err in this case, in excluding from the jury the execution of the former bond by Mrs. Waller as guardian for Rachel; for,[if the default of tbe guardian did not create an obligation upon tbe sureties in this bond, when they were jointly sued by tbe ward, this should have been shown. After judgment, and after one of tbe sureties has paid tbe entire demand, it is too late, as between themselves, when contribution is sought to be recovered, to go behind the joint judgment against them, and show that no cause of action existed against them.

But if we concede that Campbell was bound upon the first bond, and that, pending that bond, Mrs.’Waller came to a settlement of her annual account, when the sum which has been recovered against the sureties on the second bond was found due from her to her ward, it by no means follows that he is bound to pay the whole debt. It was entirely competent for Mrs. Waller to obtain other securities to unite with him, and share his responsibility as to any Pause of action which might thereafter accrue in the course of her guardianship ; and that this default did so accrue, is conclusively settled by the judgment against the sureties.—Broughton v. Robinson, 11 Ala. 930 ; Cave, use &c., v. Burns, 6 ib. 780-2.

Neither do we think there was error, in excluding from the jury what the counsel of Rachel Waller said about the mistake in bringing suit upon the second bond. If he had authority to make the declaration so as to conclude his client, it is not shown that the judgment was in anywise vacated by the party who obtained it; and being in full force, the plaintiff had the right to pay it and look to his co-sureties for contribution.

Nor is the objection well founded, that the facts set forth in the motion do not appear as proved by the judgment entry. The parties took issue, as we must intend, upon the allegations containéd in the motion; for it is said a jury were sworn to try an issue, and as none otherwise appears, we must presume such issue was a general denial by the defendant of what the plaintiff in the motion alleged; and the issue being found for the plaintiff, is equivalent to spreading the facts contained in the motion, as proved, upon the record.

What are the facts ? A common creditor recovers a joint judgment against three sureties ; one of them pays the whole judgment; another being insolvent, and the principal being-dead, he moves against the third solvent surety for a summary judgment for one half of the amount paid by him. The jury have affirmed these facts to be true ; and although, under the law as it existed before the present Code went into operation, these facts would not have entitled the plaintiff below to this summary remedy, as we have held in Nation y. Roberts, 20 Ala. 544, yet the motion, being made since the Code became the law, is fully warranted by its provisions. — §2645, clause 1.

Let the judgment be affirmed.