Woodward v. Moore , 13 Ohio St. (N.S.) 136 ( 1862 )

Gholson, J.

The express condition of the contract is that Woodward was to be responsible after the prosecution of Hall to insolvency. The inference is clear that it was the understanding of the parties that Hall could be prosecuted to insolvency, and Woodward must be regarded as having made guch an agreement. This suit is brought for the breach of that agreement, and to show such breach it appears to us that the record of proceedings in Iowa was competent evidence. Those proceedings showed that the effort to prosecute Hall •to insolvency failed, because the judgment against him had been paid,.as found by the district court in Iowa. The institution of the suit in Iowa was a proper step in the exer,cise of the diligence required to prosecute Hall to insolvency. "But when the defense of payment was interposed, proper .diligence required that notice should have been given to Woodward; and there having been a failure to give such •notice, he can not be concluded by the judgment.

We do not see that it can make any difference whether the suit on the judgment was prosecuted in the name of Wood-ward for the use of the assignees of the judgment, or in the nam.e of the assignees. It was none the less the suit of the assignees, and conducted by them in compliance with their contract to prosecute Hall to insolvency before calling on Woodward. If they have been wanting in proper diligence in conducting the suit they can not escape the consequence by a resort to the technical form in which it was instituted.. For the practical and substantial purposes of the contract it is the same as if the suit had been in their own names. Indeed, we do not doubt that, under the law of Iowa, Woodward, without their assent,'would not have been allowed te interfere with the conduct of the suit.

The most that could be claimed for the effect, as evidence, of the record of the proceedings in Iowa, would be to make a prima, facie case for the plaintiff in the action below. Had notice been given to Woodward of the pendency of the suit in Iowa and of the defense set up, it might have been his duty in that action to sustain the validity of the judgment he had assigned. Having received no such notice, he is not precluded from showing in the action against him that the judgment he assigned was a valid and subsisting judgment, and that had proper diligence been used in the conduct of the suit against Plall, his defense to that suit would not have been successful. In rejecting the evidence offered for that purpose-by Woodward we think the district court erred, and for that error the judgment must be reversed.

Judgment reversed.

Sutlife, C.J., and Peck, Brinkerhofe and Scott, JJ.y concurred.