Perry v. Saunders , 36 Iowa 427 ( 1873 )

Day J.

— Appellant presents for our consideration two questions. Eirst: Was the lien of the first judgment of February term, 1871, extinguished by, or merged in, the new judgment rendered on the 26th September, 1872 ?

Second: If the lien of the first judgment was extinguished by the new judgment, is the surety, B. E. Saunders, thereby discharged ?

We deem it necessary to consider only the last question presented. The right of plaintiff to sue upon the original judgment is not denied. On this point see Simpson v. Cochran & Cherie, 23 Iowa, 81. When appellant executed the note as the surety of his co-defendants, he impliedly agreed that plaintiffs might avail themselves of all the legal remedies to which the contract entitled them.

These remedies embrace the right to sue upon the note at any time within ten years from its maturity, and upon the judgment thus obtained within twenty years from its rendition.

The plaintiffs acquired these rights in virtue of the defendant’s contract. Whatever consequences flow to defendant from an exercise of these rights, result from an obligation voluntarily assumed on his part. Of these consequences he has no legal ground of complaint. When he signed the note he knew what remedies the law provided. By signing it' he agreed that those remedies might be used against him. If the exercise of these rights has placed him in a condition in which he may suffer loss, it is his fault, and not plaintiff’s. He agreed that the note should be paid at maturity. He has violated this agreement. After judgment was recovered it was his duty to discharge it. This he has not done. He might have guarded against the loss of the lien of the first judgment by paying it, and becoming subrogated to the plaintiff’s rights under it.

The defense is anomalous. The original answer is a denial of every allegation of the petition. Having interposed this defense the defendant stands by until plaintiff’s having taken judgment against his co-defendants. Then he amends his answer, admits all the allegations of the petition, and says “ you have discharged me by taking judgment against my co-defendants. ” If judgment had been taken against appellant at the time it was rendered against the other defendants, the defense now urged could not have been interposed. And yet if judgment had been so taken, his position, as to lien, would have been precisely as now. He sustained no prejudice then by the rendition of a separate judgment against his co-defendants. And if he sustained no prejudice by such judgment, there is no reason why he should now be in a different position from that which he would have occupied if judgment had been rendered against all the defendants at the same time.

We are clearly of opinion that, whatever was the effect of securing the second judgment, the defendant is not released from responsibility.

Affirmed.