
    Samuel McCrory v. James J. Parks.
    ties for an account between them, and to recover of each his proportionate-share of a judgment of amercement that had been collected of him. One of the defendants also sought to recover, by answer and cross-petition in amount paid by him on another judgment of amercement to which all the sureties of the sheriff had been made parties; but which judgment, it appears, had been obtained by reason of a return-, fraudulently procured by . the defendant, upon an execution issued on a judgment against him; and the amount paid by the defendant was in fact his own'debt that had not been otherwise discharged by him. Held— An action was brought by one surety on a sheriff’s bond against his co-sure-the same case, against each of the parties, his contributive share of an
    1. The action was one in which the parties had not the right to demand a trial: by jury, and was therefore appealable to the district court.
    
      3. The parties in this case not being in any sense adversary parties in the proceedings by which they were made parties to the judgment paid by the defendant, and his fraudulent conduct not being involved in those proceedings, the plaintiff is not estopped thereby from setting up, in this case, the fraudulent non-payment of the original judgment by the defendant.
    3. The judgment discharged by the defendant being one that he alone ought to pay, and one that resulted from his own fraud, he has no ground for equitable contribution against his co-defendants in the judgment.
    Error to the district court of Wood county.
    2] *On the 17th day of October, 1863, the plaintiff, McCrory, brought an action, in the court of common pleas of Wood county against James J. Parks, Jairus Curtis, and Michael Hays. He alleged, in his petition, that the defendants and two others were co-sureties with him on a bond given by Thomas L. Webb, as sheriff; that all the sureties on the bond had been made parties to a judgment of amercement against the sheriff, and that he had been compelled to pay the whole of the judgment, which, with the costs, .amounted to $116. As to the two sureties not made parties, he avers that one has paid him one-fifth of the amount so paid by Mm, .and that the other died insolvent. Ho prays for judgment against each of the defendants, severally, that may be solvent, for his respective proportion of the money so paid on the judgment, and for .general relief. ;
    The defendants, Curtis and Hays, failed to answer, and the plaintiff obtained a several judgment against each of them for $24.30, and for one-third of the costs.
    The defendant, Parks, answered, admitting the petition to be true, and that he was liable to pay his proportionate amount of the ¡sum claimed by the plaintiff; but he claims, by way of cross-petition, that he is entitled to recover of the plaintiff and his eodefcndants $833.36, by reason of his being compelled by execution to satisfy another judgment of amercement for that amount in favor -of Cooper & Co., rendered against the sheriff, in Knox county, to which he and the said sureties of the sheriff were made parties.
    He attaches to his answer and cross-petition, as a part thereof, the record of the amercement proceedings in Knox county, by which it appears that an execution was issued on a judgment rendered in that county in favor of Cooper & Co., against said Parks, to said sheriff, who returned thereon that he had levied on a saw-mill belonging to Parks, and had sold the same to one Coarser for $775.
    The sheriff was amerced for failing to pay over the money arising from the sale.
    In the action to make the sureties on the bond of the sheriff parties to the judgment of. amercement, an answer was filed by Parks, in behalf of the defendants, denying that the ^sheriff sold the [3 saw-mill on the execution, and averring that it was struck off to Coarser, who refused to pay therefor. He further answered, that the return on the execution was made without the authority of the sheriff, and should have been that the property was unsold for want of bidders.
    The court found, in that case, that the allegation in the petition, that the money was made on the execution, was true, and that the answer was untrue, and rendered judgment against the sureties on the bond.
    The defendant, Parks, prays for a judgment against the plaintiff, McCrory, for his contributive share of the money so paid on the Knox county judgment, less the amount he is liable to contribute on the judgment-paid by the plaintiff, and that he may recover of lis co-defendants, severally, the amount each is liable to contribute of the sum paid by him on said judgment.
    To this answer and cross-petition of the defendant, the plaintiff replied, admitting them to be true; but he denies that the defendant, Parks, is entitled to recover against him, for the reason, as he aveis, that the original judgment in Knox county, on which the sheriff was amerced, -was against the defendant, Parks; that the execution issued thereon was levied on a saw-mill, the property of said Parks; and such proceedings wore had thereon that the property w«s struck off to Coarser for $775, and that fact was returned on the execution. But he alleges that Coarser never paid any part of said sum to any one, and that the return was made on the assurance of Coarser that said sum should be paid whenever it should be wanted, at the next term of the Knox county common pleas. He furtheravers that the bidding upon said property at said sale,. by said Coarser, was not in good faith, but was a sham, and fraudulent, and was made at the solicitation of, and in collusion with, said Parks, for the purpose of defrauding said sheriff, and obtaining, further time in which said Parks might pay his said indebtedness-. Said Coarser never took possession of said property, but said Parks retained possession thereof, and subsequently sold and disposed of' the same on his private account, and for his individual benefit, ex-43 ercising ownership over it as fully as he had *or did before said levy and sale.” He also alleges that Parks never paid the-Knox county judgment against him, otherwise than by paying the same in the satisfaction of the judgment of amercement, which was-in fact his own debt.
    To this reply the defendant filed a demurrer, which was overruled, and the court, on hearing, found that the petition and reply were true, and rendered' a judgment against him, in favor of the-plaintiff, for $26.10, and for all the costs not theretofore adjudged-against the other two defendants.
    The defendant took the case to the district court, by appeal, where his demurrer to the reply was sustained, and judgment was'rendered in his favor, against the plaintiff, for $261.54, as his contributivo share of the amount paid by defendant on the Knox, county judgment, after deducting the defendant’s eontributive share of the amount paid by the plaintiff, as stated in his petition.
    The district court also rendered a judgment in favor of the defendant, against his co-defendant, Hays, for $287.87, as the amount of contribution due from him to Parks, for his payment of the Knox county judgment.
    The plaintiff, McCrory,'brings this petition in error to reverse the judgment of the district court against him, and assigns for-error, that the court erred in sustaining the demurrer to his reply, and in rendering judgment against him. It is also claimed that, the case was not appealable to the district court.
    
      F. & D. K. Hollenback, for plaintiff in error :
    The demurrer of Parks can not be sustained upon the assumption*, that the defense set up by McCrory had already been adjudicated between the same parties in a court of competent jurisdiction, to wit,, the common pleas of Knox county. The issue made by the cross-petition of Parks, and.McCrory’s answer thereto, clearly is the liability or non-liability of Parks’ co-sureties to make contribution to-him. This was not before the Knox common pleas in the remotest degree. The point there was the liability of all the bail to Cooper' & Co. The liability of the sureties inter se se was not before the-5] *court at all, and could not, therefore, have been “necessarily tried and determined.” Lessee of Lore v. Truman, 10 Ohio St. 45; Babcock & Co. v. Camp, 12 Ohio St. 11.
    Again, this action is not between the same parties, as in the suit in the Knox common pleas. There, Cooper & Co. were the contestants on the one side throughout; here, they do not appear at all. By the same parties, is meant adversary parties, for it is essential to the conclusive effect of a former judgment or decree, that its operation be mutual — that both the litigants be alike concluded by it. 1 Greenleaf’s Ev., sec. 524.
    Again, “a party is not to be concluded by a judgment in a prior •suit or prosecution, where, from the nature or course of proceedings, he could not avail himself of the same means of defense or of redress which are open to him in the second suit.” Ib. In the action of Cooper'& Co., to make the sureties of Webb parties to the judgment, the co-sureties of Parks could not, for the purpose of defeating Cooper & Co., set up the facts that the original judgment upon which the judgment of amercement was based, was a judgment against one of their number (Parks), and that Cooper & Co. must look to him alone for redress. They could not be delayed by the settlement of collateral issues among the sureties.
    This action, therefore, is not between the same parties, upon the same matter put directly in issue by the pleadings in the previous suit.
    
    It is a familiar maxim, that “ he who seeks equity must do equity,” or, “he who comes into a court of equity'seeking relief, must come with clean hands.” Does. Parks come with clean hands? He admits that through Coarser, he practiced a fraud upon the sheriff, for the purpose of obtaining further time in which to pay his indebtedness to Cooper & Co. To sustain the claim of Parks would be making his co-sureties pay his individual indebtedness, and without rendering them an equivalent therefor.
    It is a familiar maxim, that “fraud vitiates all contracts.” Courts leave parties practicing fraud where it finds them,
    Parks was confessedly guilty of fraud, yet was forced ultimately to pay an honest debt. The court, we think, will Heave him [6 where it finds him, especially as he did what he ought to have done many years before — pay Cooper & Co.
    
      D. W. H. Day, also for plaintiff in error :
    It nowhere appeal’s in the pleadings that the plaintiff or any of his co-sureties upon the sheriff’s official bond were made parties to the amercement proceedings against the sheriff, or that they could have set up the facts which the plaintiff sets up in his reply. The record of the amercement proceedings attached to the defendant’s answer, does not legally make it a part thereof. Code, sees. 117,122.
    But the amercement proceedings against the sheriff and his sureties, ca'n in no way affect the rights of those sureties among themselves.
    Was the case in the common pleas appealable to the district court?'
    
      James Murray, for defendant in error:
    This is not an equitable action. The petition of McCrory is: framed alone upon his strict legal rights; he asks alone for his legal, remedy; he seeks legal and not equitable relief: so that we are not called upon to determine what may have been or may now be the equitable rights of the parties under a petition properly framed for that purpose. The answer and cross-petition of Parks did not change the character of the action.
    The finding and judgment of the court of common pleas of Knox county is decisive of the case at bar.
    All who are parties to this suit were parties to that. The matter in issue is substantially the same. If there was no finding as to the respective rights and liabilities of the parties, there was a finding as to the liability of Webb, as sheriff, and that these parties as his sureties were bound for its payment.
    The maxim that “fraud vitiates all it touches,” is not applicable to this case. If there was fraud in the original arrangement between Coarser and Parks, there is no pretense of fraud in the finding or judgment of the court. Wo claim, upon every known principle of law, that the record of that finding and judgment is conclusive 7] and binding as to all parties and *privies thereto; that all the parties to this suit were parties to that; and that the judgment of the district court must be affirmed.
   Day, C. J.

In the determination of this case, three questions are presented for our consideration.

Was the case one of which the district court could obtain jurisdiction by appeal ?

This depends upon whether, under the statute, either party had the right “to demand a trial by jury.” S. & C. Stat. 1157. That right is secured to parties, as to all “ issues of fact arising in action® for the recovery of money, or of specific real or personal ¡property.” S. & C. Stat. 1020.

The ultimate purpose of the action was, undoubtedly, the recovery of money. But the case made in both the petition and cross-petition is not one where a money judgment, merely, is sought by one party against another. In both, one party is seeking to recover against several parties, in a case where, though they are mutually liable, each one stands upon his own individual right, and a joint judgment can not be rendered against them.

The liabilities existing between co-sureties are always to be settled upon principles of equity and justice. From the nature of the case, each party is entitled to an account, to determine cither the fact, or extent, of his liability. In a suit by one against several co-sureties, the object of the action is to enforce an account to determine the equities between them, and, without a multiplicity of actions, to settle the respective rights of each in one case, and, as a result of the settlement, to obtain such orders and judgments as may be equitable and just between the parties.

Looking to the pleadings in this case, we think it was not, within the meaning of the statute, an action for the recovery of money, in such a sense as to give either party the right to demand a trial by jury; and that, therefore, the case was appealable to the district court.

Is the plaintiff estopped from availing himself of the defense set up in his reply ?

This is claimed to be the case, by virtue of the proceedings *in Knox county, to which the plaintiff was a party. It is [8 true that the court found in that case that the property of Parks was sold, and that the full amount of the judgment was made upon the execution. But these findings were upon issues mado in a case between Cooper & Co. — the plaintiffs in the judgment of amercement — and the parties to this case who were co-defendants in that. These parties were not adversary parties in that case, nor were their respective rights against each other in controversy. The sheriff’s return might have a very different effect, as an item of evidence, between the parties to that case, from what it would have in the present ease between the sureties of the sheriff to determine their respective rights against each other. Moreover, the fraudulent conduct of the defendant, which is the gist of the reply, was not in question in that case; and, if it had been, it would surely have been of doubtful availability to Parks. The plaintiff is not, therefore, estopped by the record pleaded in the answer, from availing himself of the matters stated in his reply.

Were the allegations in the reply a sufficient defense to the claim made in the answer and cross-petition ?

The rights of co-sureties stand upon the plainest principles of equity. Their right to contribution against each other arises when some have borne burdens that ought to be shared equally by all.

The demurrer admits the truth of the reply. It was the duty of the defendant to pay his own debt. He ought to have done it long before, and saved others harmless from it. Having done what he alone ought to do, he has no claim in equity to force his own duty upon another, and worse than none, when he asks that it may be •done upon grounds that he admits are founded in his own turpitude.

The judgment of the district court will be reversed, the demurrer overruled, and the cause remanded to the district court for further proceedings.

Brinkerhoff, Scott, White, and Welch, JJ., concurred.  