Opinion
October 5, 1934.
November 26, 1934.
Contribution — Joint debtors — Payment by one — Reimbursement — Amount of — Relationship of joint debtors to each other — Right of paying debtor's surety — Scire facias to revive judgment.
1. Where one of several joint debtors makes payment to the creditor, such debtor cannot require reimbursement based upon a greater amount than he was required to pay. [529]
2. Joint debtors, as between themselves and their creditors, are each liable for the whole debt, but as between themselves alone only pro rata, and each is surety for the other. [529]
3. A surety who pays a debt, which has been reduced to judgment, is entitled to have the judgment kept alive for his benefit and to enjoy the same advantages as could have been claimed by the original creditor. [529-30]
4. Where judgment is entered against the joint makers of a note, and one of the makers pays the creditor and has the judgment assigned to one who, in fact though not on the record, holds such judgment in trust for him, on a scire facias to revive such judgment, judgment will be entered against the defendants other than the one who made payment, in the amount paid to the creditor, subject to proper adjustment in contribution upon execution or bill of complaint, and the record will be amended so as to name the use-plaintiff assignee and trustee for the debtor who made payment. [527-31]
Judgments — Revival — Defenses.
5. On a scire facias to revive a judgment, it is the general rule that only a denial of the record or subsequent payment is available as a defense. [528]
Amendments — Discrepancy between facts and record — Time of allowance.
6. A discrepancy between the facts and the record is curable by amendment and for the purpose of consideration of a motion for judgment n. o. v. the record may be treated as amended. [529]
Argued October 5, 1934.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 248, March T., 1934, by defendants, from order of C. P. Allegheny Co., Jan. T., 1930, No. 288, entering judgment for plaintiff n. o. v., in case of City National Bank of Wichita Falls, Texas, now for use of Thomas T. Newhams, assignee, v. Wilson C. Atkinson, et al. Judgment affirmed.
Scire facias to revive judgment. Before PATTERSON, J.
Verdict directed for defendants.
The facts are stated in the opinion, PATTERSON, J., of the lower court, E. W. MARSHALL, PATTERSON and GARDNER, JJ., as follows:
The facts in this case are undisputed. The proceeding was a scire facias to revive a judgment. The trial judge gave binding instructions for the defendants on the theory that there were equities between the joint defendants which could not be satisfactorily adjusted in an action on the law side of the court, without prejudice, however, to the right of the use-plaintiff to pursue any legal or equitable remedy that he might otherwise have (Record, 16 to 18). (Printed Record, 49a to 51a.) The plaintiff presented a point for binding instructions as there was no defense offered to the proceeding. The trial judge refused plaintiff's point, to which exception was taken, and motion is now made for judgment non obstante veredicto, as well as for a new trial.
On September 23, 1924, City National Bank of Wichita Falls, Texas, entered suit against Wilson C. Atkinson, Oliver B. Alcorn, L. A. Painter, F. H. Finley, C. E. Fawcett, A. H. Sunshine, George S. Foster, B. L. Succop and John F. Nulton on two promissory notes at No. 2344, October Term, 1924. All of said defendants were served except F. H. Finley who was not a resident of this state. On October 18, 1924, judgment was entered by default against the eight defendants who were served in the sum of $10,402.50.
On January 27, 1925, the judgment was assigned to Thomas T. Newhams and on October 15, 1925, said assignment was filed of record at No. 2344, October Term, 1924.
On October 14, 1929, a scire facias to revive the judgment was filed at the above number and term. Six of the defendants, to wit, Wilson C. Atkinson, Oliver B. Alcorn, C. E. Fawcett, A. H. Sunshine, George S. Foster and B. L. Succop were served. F. H. Finley was not named in the writ, and the other two defendants, to wit, L. A. Painter and John F. Nulton were not served.
The six defendants who were served filed separate affidavits of defense. In substance, the affidavits of defense set forth that the nine original defendants were joint makers of said promissory notes for the accommodation of Keystone Ranger Development Company; that as between themselves they were each liable for one-ninth the amount of said promissory notes; that John F. Nulton, one of the defendants, paid the judgment entered at No. 2344, October Term, 1924, and took an assignment of same in the name of Thomas T. Newhams; and that Thomas T. Newhams is merely a trustee for John F. Nulton. The defendants Sunshine and Fawcett admitted liability to John F. Nulton for one-ninth of the debt, while the defendants Foster, Succop, Alcorn and Atkinson made a qualified admission, subject to adjustment of credits for property and securities turned over.
The question presented is purely one of law, the facts being undenied. On the scire facias to revive a judgment, it is the general rule that only a denial of the record or subsequent payment is available as a defense: Dowling v. McGregor, 91 Pa. 410; Moll v. Lafferty, 302 Pa. 354, 359. Here, payment was pleaded by six of the defendants, the payment averred having admittedly been made by Nulton, one of the defendants. Thus the matter had to go to trial.
It is quite obvious that the legal plaintiff could not have prevailed, having been paid. Is the use-plaintiff in any better position? The answer would be in the negative, were the use-plaintiff, as the naked record indicates, assignee in his own right. But it now appears by Exhibit 1, offered in evidence at the trial, that the use-plaintiff was acting under a declaration of trust, a fact that has been all along admittedly known to defendants. The defense then becomes a plea of non assumpsit as to the use-plaintiff himself, but an admission of liability to the extent of one-ninth of the judgment to Nulton, the cestui que trust for whom the use-plaintiff is trustee, as well as assignee. The fact that the use-plaintiff does not appear as trustee, in our opinion, makes no difference under the particular and peculiar circumstances of this case, for it appears in the pleadings and is admitted in the record that Nulton paid the judgment, that the use-plaintiff is merely his agent or trustee and that the defendants had knowledge of this condition. The discrepancy between the facts and the record is curable by amendment and for the purpose of this proceeding the record may be treated as amended: Tobacco Co. v. Posluszsy, 31 Pa. Super. 602, 604. The court has the power to make such amendment and we deem it proper to direct that this be done. It is likewise necessary to modify the judgment in amount, since the evidence discloses that the judgment was assigned on the payment of $8,750. Equitable principles and good morals dictate that Nulton, as between himself and his associates, must not be reimbursed in a greater amount than he was required to pay.
It is undoubtedly the law that joint debtors, as between themselves and their creditors, are each liable for the whole debt, but as between themselves alone only pro rata and each is surety for the other: Ackerman's App., 106 Pa. 1. It follows that even though a judgment be satisfied of record, the surety paying the same will be subrogated: Reimel v. Trust Co., 304 Pa. 121, 127; Lackawanna Safe Deposit v. Gomeringer, 236 Pa. 179. Therefore, if Nulton had taken the assignment in his own name, he could have appeared as use-plaintiff by subrogation and recovered from defendants by way of contribution, for a surety who pays a debt, which has been reduced to judgment, is entitled to have the judgment kept alive for his benefit and to enjoy the same advantages which could have been claimed by the original creditor: Goldsman v. Mitchell-Fletcher Co., 292 Pa. 354, 357; Bispham's Eq. (10th ed.), section 336. It would seem then, Nulton, being in law surety for the other joint makers of the notes, was entitled to subrogation and could effectuate this by assignment on the part of the legal plaintiff to himself or to another in his behalf. At the trial it developed that the legal plaintiff had been paid, as defendants averred, by Nulton. Accordingly, the defense of payment was good against the legal plaintiff. But the use-plaintiff, as assignee in trust for Nulton, was properly subrogated and, not having been paid, the judgment must be revived as to him against all the defendants for the purpose of enforcing contribution. That was and is the only issue here to be decided. The method of effecting contribution is a subsequent consideration. Such contribution may be by approximate actions at law or in equity. If at law, the court will control such execution as may issue against the several defendants, with due regard for payments that may have been made in partial discharge of the pro rata liability. If in equity, the chancellor by his decree can adjudicate the various rights and obligations. It is here suggested that in view of the fact that the value of certain property and securities, as credits, seems to be involved, equity affords the simplest path to adjusted contribution. We are, therefore, of opinion that the trial judge erred and that the judgment should be kept alive.
We are not concerned with the Act of 1856, P. L. 532, section 9, Purdon, Title 12, page 117, section 808, which we think has no application: Fessler v. Hickernell, 82 Pa. 150. Nor can we accord authority for the case at bar to Com. v. Surety Co., 172 Atl. R. 844, recently decided by the Supreme Court. In that case the simple question decided was that a surety company which gave bond for one county commissioner could not be held directly liable to other county commissioners who paid a surcharge.
From the foregoing disposition of the case, it automatically follows that a new trial must be refused. We find no merit in plaintiff's motion for a new trial. No complaint is made of the omission of evidence and those reasons which are advanced in support of a motion for a new trial are the same which move us to the entry of the judgment non obstante veredicto.
Order entered directing judgment for plaintiff n. o. v. and amending record. Defendants appealed.
Error assigned, inter alia, was judgment n. o. v., quoting record.
John A. Metz, with him Charles L. Wilmot and John A. Metz, Jr., for appellants.
W. Denning Stewart, with him W. Clyde Grubbs, for appellee.
The law applicable to the undisputed facts of this case is clearly and correctly stated in the opinion of Judge PATTERSON. Upon that opinion the judgment of the lower court is affirmed.