Bently v. Gregory , 23 Ky. 368 ( 1828 )

Judge Owsley

delivered the Opinion of the Court.

As assignee of Leroy Gregory, to whom Bently and his surety, Conover, executed a note for $72 50 cents, Benjamin Pile brought suit upon the note, and recovered judgment at law. The note is dated the 11th of Oct. 1822, and was assigned by Gregory to Pile, the 25th January, 1823.

To be relieved against the judgment, Bently exhibited his bill in equity, with injunction, making Pile and Gregory defendants thereto, and suggesting that Conover was no otherwise interested than as his surety in the note upon which judgment was recovered at law, and omitting to make him a party, °

The bill alleges Gregory to be insolvent; charges t0 *tave ^een owhig Bently by note, prior to his assignment to Pile, and is still owing a much larger amount than that mentioned in the assigned note to Pile, and prays for the debt so owing by Gregory, to be applied by way of set off to the satisfaction of the judgment recovered by Pile, and for general relief.

Pile and Gregory each answered the bill, but the contents of their answers need not be particularly •noticed.

Pile afterwards died, and an order was made by the court reviving the suit against his administrattor, but there does not appear to have been any service of the order of revival on the administrator of Pile, nor does he appear to have done any thing in- the preparation or management of the cause.

The cause was however heard, and a decree made dismissingthe bill, and dissolving the injunction, with damages and cost.

The decree is doubtless erroneous. The merits of the case are decisively in favor of the complainant, and we should have no hesitation, not only to reverse the decree, but also to remand the cause to the court below, for a decree to be there entered perpetuating the injunction against the judgment at' law, if there existed no irregularity in the preparation of the cause for hearing.

Practice in tilis oourt‘ It is not nebfiTbrthe & principal "dc-fondant in a At j"t'hat the surety be ra;ide a par- ’ where a defendant dies after answer, b/revived y against his representaan court, butthe representagg^eiTwith X Cgpy 0f the ‘ order. a party who appears in 'his court, g^'e^fore the circuit court, upon ‘jj® *®tR™

Entertaining, however, as we do, the opinion that the cause was not in a proper state of preparation for a final hearing upon the merits, it would be premature now to give peremptory directions as to the ultimate disposition of the case upon the merits.

The irregularity which we understand to exist in the preparation, does not consist in the failure of the complainant to make Conover a party to the suit. Conover is but the surety of Bentley in the note upon which the judgment at law was recovered, and it has been repeatedly held, and, we apprehend, correctly, that without making the surety a party, the principal may, by bill in equity, assert any equity which he may have against the demand for which he and his surety are bound at law.

The irregularity consists in the complainant not causing a copy of the order to be served upon the administrator of Pile, after the order of revival was made by the court, and before the cause was heard upon the merits. As Pile had answered the bill before his death, no bill of revivor was necessary to revive the suit against his administrator; but according to the express directions of the act of the legislature upon that subject, a copy of the order should have been served upon the administrator before the cause was heard upon the merits, without appearance by him.

The decree must be reversed, with cost, and the cause remanded to the circuit court; but as the adrninistrator of Pile is now before this court, it will be unnecessary for a copy of the order reviving the suit to be served upon him after the cause returns to that court. The administrator should, however, on the return of the cause to the court below, be allowed, under the discretion of that court, reasonable time to prepare and make his defence to the inCritS °f thC C°nteSL

and Monroe for plaintiffs; Triplett for de ■ fendants.