People ex rel. Loh v. Judge of Wayne Circuit Court , 1872 Mich. LEXIS 184 ( 1872 )

Per Curiam.

There is no good ground for the objection made by the sureties, that they have been deprived of their right to be heard and to contest their liability. No question of forgery has been raised, and none of identity, and if these questions should come up in any case, there are sufficient means of protecting any party from liabilities which he never incurred. No such point can arise in this form, and no such facts are set up.

The issuing of the execution against the surety on such a bond, is one of the conditions of his undertaking. When the statute fixes conditions and consequences to such an undertaking, all of its terms are as much a part of the agreement as if incorporated in its language expressly. The surety agrees that upon a certain contingency, that is, in case of a judgment against his principal, execution may issue directly against himself. The statute practically requires that, in order to discharge the garnishment, the original party shall find one or more persons who shall allow themselves to become parties to the proceeding, and. to be represented by him in it, so as to become bound by whatever binds him. The sureties appear in person to be examined, and the undertaking can never be forced upon them against their free will, or without full means of informing themselves. They can secure.such rights of intervention as they see fit to exact from their principal, and it is their own fault if they do not provide for a full establishment on the trial, of any rights which he has in the controversy.

If judgment against them on the security, were required before execution could issue, they would be no better off where the undertaking is absolute to make good the judgment against their principal. The merits would be concluded by that judgment. And there is no rule of law, or reason, that we are aware of, which can make the present statutory course improper, and the law invalid. There is no proceeding to which they do not make themselves parties, or which they have not expressly consented to. It would be quite as unreasonable for any party to object to be bound, because he has appeared by attorney, and not in person. The case cannot be distinguished in principle from that where judgment is rendered on a cognovit, under a warrant of attorney to confess judgment, which is a very common practice. It only differs in the fact that the warrant is given directly into the hands of the court, and not left in private custody, so that it is in all cases an act of personal intervention in an existing suit. — See Chappee v. Thomas, 5 Mich., 53; Whitehurst v. Coleen, 58 Ill., 247.

Mandamus granted.