Frankel v. Stern , 50 Ill. App. 54 ( 1893 )

Opinion of the Court,

Gary, P. J.

Taking the view of the facts most favorable to the appellants, they hacl a note for $1,221.47, made by Jose Stern, and guaranteed by the appellee.

Appellants commenced against Jose one suit, and Daniel another.

They put unjust defenses in each suit to the extent of $300, and rather than incur the delay and risk of solvency, the appellants took judgment in each case for $921.47.

Jose has paid the judgment against him, and the appellee applied to the court to have satisfaction entered upon the judgment against him.

The court ordered it, and the appellants say that upon such an application, the court ought to inquire whether equitably the appellants were not entitled to a larger judgment, and on finding that they were, require the payment of the excess before entering satisfaction.

That the appellants having judgments against both the maker and guarantor of a note, would be liable in some form of action for damages if they caused a levy upon the property of the guarantor after the judgment against the maker had been paid, must be conceded. Cooley on Torts 2d Ed., 220.

Ho use can with impunity be made of the judgment. Why then should the court be required to go behind the voluntary act of the party and inquire whether for some real or supposed advantage, he had not forborne to enforce-his rights ?

Inadvertently the court did not require the appellee to pay the costs in the suit against him, before entering satisfaction. For that error the order entering satisfaction is reversed and the cause. remanded, with directions to require those costs to be paid as a condition precedent to the order.