Kirby v. Coolbaugh

Opinion bt

Porter, J.,

The court below has found the fact to be that “ on the 13th day of December, 1893, A. D. Coolbaugh, F. PI. Coolbaugh and Emily Coolbaugh gave John Sullivan a note containing a confession of judgment for the sum of $1,100; said A. D. Coolbaugh and F. H. Coolbaugh were principals in said note, and the said Emily Coolbaugh signed the same as surety.” The last clause of this finding is challenged by the appellant on the ground that it is not warranted by the evidence. Such a finding of fact would be disturbed only for manifest error. Here the evidence justifies the finding that Emily Coolbaugh was surety for her co-obligors. The testimony of Sullivan also discloses sufficient facts to sustain the finding of the learned judge that “ Sullivan knew that Emily Coolbaugh was surety or was chargeable with such knowledge.”

Sullivan assigned the judgment to Kirby, who paid value for it. No notice was given to Kirby of the relationship of the parties defendant by the assignor, by the defendants or by the record. The only contention on behalf of the appellant which presents any ground for reversing the court below is that there was laches on the part of Emily Coolbaugh in not informing Kirby of the fact that she was a surety for her codefendants with the incidental right of subrogation in case she should be compelled to pay the judgment. This argument has been met and disposed of in the case of Owen’s Appeal, 11 W. N. C. 488. It was there held that a defendant who was a surety was under no obligation to give to the holder of a judgment notice of his relation of surety, and the cases of Douglass’ Appeal, 48 Pa. 223, and Gring’s Appeal, 89 Pa. 336 (cited by the appellant in the present case) were there distinguished. In both of them the laches attributed to the surety was the failure to assert the right of subrogation until a considerable time had expired. In Owen’s Appeal, supra, and in the present case the right of subrogation was asserted by application to the court promptly on the enforcement of the payment of the judgment by the surety. There the holder of a mortgage against one of two defendants bought a judgment prior in lien, and enforced the payment of the latter by the defendant whose lands were not covered by the mortgage. When the payment was thus enforced the right of subrogation was claimed by the defendant who paid the judgment. This right was sustained by the Supreme Court. The purpose in buying the judgment was apparently to compel its payment by the defendant whose lands were not covered by the mortgage held by the plaintiff. By this course it was hoped that the mortgage would be promoted in lien by the discharge of the judgment which was anterior to it.

Here the purchase of the Sullivan judgment by Kirby, and its collection from, A. D. Coolbaugh and Emily Coolbaugh, was intended to operate as a payment of the judgment, and thus result in promoting the judgment held by Kirby against F. H. Coolbaugh to the position of the first lien on the fund held by the administrator for .distribution in the orphans’ court. Therefore, following the precedent of Owen’s Appeal, we are led to confirm the action of the court below.

Judgment affirmed.