
    James Wellons, Executor of Marcus Pierce vs. Camp P. Newell et al.
    Although a judgment without notice is void, yet if a bill be filed to obtain a new trial at law, on the ground of want of notice of the pendency of the action at law, and the answer deny the want of notice, and there be no proof to sustain the allegation of the bill, the bill must be dismissed; yet without prejudice if there has been no trial in the court below on the merits.
    N. filed a bill to obtain relief in equity against a judgment at law, in favor of D. on a note, which he averred he executed as a surety for the principal therein, with the understanding that D. was to be a co-surety with him; but that D. was made payee, and indorsed the note as accommodation in-dorser, to the person for whom it was intended, and when the note became due, D. took it up, and sued the makers thereon at law, and obtained judgment: Held, that the application came too late after judgment at law; that N. was concluded thereby from the defence.
    On appeal from the vice-chancellor’s court at Carrollton Hon. Henry Dickinson, vice-chancellor.
    Marcus Pierce states in his bill, that in April, 1837, he,, with one Camp P. Newell, executed their joint note to the order of Washington Dorsey, the consideration of which was. a preexisting debt due from Dorsey and Newell to Ballard and Franklin by their joint note, and for which Ballard and Franklin had agreed to give longer time if the complainant would sign it as additional security ; upon which the note was drawn as stated, and indorsed by Dorsey; that Dorsey made the application to him to sign the note as surety jointly with him, Dorsey for Newell, as Dorsey was formerly his sole surety; and that when he signed the note, he supposed that he and Dorsey were joint sureties of Newell; and had no idea that he was, by signing the note and Dorsey indorsing it, making himself liable to Dorsey. That Dorsey had taken the note up and sued him on it, and obtained judgment in the Carroll-ton circuit court against him for the full amount of the note, principal and interest; that the process in the case was never served on him ; that he had no knowledge of the pendency of the suit until the execution on the judgment issued against him; that the sheriff had returned the process “ executed ” generally, through mistake, under the supposition that Newell was the only defendant in the writ, as Newell’s name was the only one indorsed on the back of the writ; that when he told the sheriff he had never been served with process, the sheriff looked at the writ and was satisfied that he had not been; and at a term of the Carroll court, subsequent to the judgment, had the service on the writ amended so as to read “executed on Camp P. Newell.” That if he had been served with process he should have defended at law. The bill prayed for injunction, new trial at law, or other relief.
    Dorsey answered the bill; admitted that he was surety for Newell to Ballard and Franklin, who threatened to sue unless further security was given; upon which he procured the complainant to sign as surety for Newell a note payable to himself, the complainant knowing at the time that he was to be liable only as indorser; that he had been compelled to pay the note; had sued upon it and obtained judgment at law; he did not know whether the writ was served on the complainant or not, but the sheriff had so returned it, and had afterwards amended his return upon which the circuit court had set aside his judgment, but the high court of errors and appeals had reinstated it. He denied all fraud.
    Newell answered and admitted all the allegations in the bill.
    Afterwards Dorsey, on leave of the court, filed an amended answer, by way of demurrer, to the bill, insisting on his judgment at law as a bar to the relief sought in equity.
    The bill was filed in May, 1842; the answer of Dorsey, in June of the same year; the amended answer in September, 1843. At the June term, 1845, Pierce’s death was suggested, and the suit revived in the name of Wellons, his administrator ; and at the same term, the cause having been previously submitted for final hearing upon bill and answers at the December term, 1844, the vice-chancellor dismissed the bill and the administrator of Pierce appealed.
    
      William, Thompson, for appellant.
    We contend that as Dorsey acknowledges he was bound with Camp P. Newell, in the note to Ballard and Franklin, if he was only security the proof would lie on him, and he has not made it.
    But suppose in that note he was only security for Newell; still, as it relates to a new note, he would stand as principal to the new security, Marcus Pierce, and as the note was given in such a form as made Pierce liable to Dorsey, when it was, as Dorsey acknowledges, to recover a note on which he was previously liable, and Pierce could not defend at law, he would have an adequate and proper remedy in equity; and under the prayer for general relief the vice-chancellor should have enjoined perpetually the judgment which Dorsey uncori-scientiously got at law against Pierce.
    Dorsey, it is true, says he was on the new note only to be liable as indorser. But then the situation of the parties, the preexisting liability of Dorsey on the note he and Newell had given to Ballard and Franklin, and the law operating upon the transaction, are all against him; and if there was an express agreement to change the relative situation and liabilities of the parties, Dorsey was certainly bound to have proven it, for it is matter of avoidance set up in his answer. His saying he believes Pierce so understood it, will not answer.
    
      Gibbs, for appellees.
    The bill discloses no grounds whatever for equitable interference, and if it did there is no proof of any allegation in the bill; he comes into court, stating his ignorance of the different liabilities of the maker and indorser of a promissory note, and upon that ground only asking relief. No fact is alleged which, upon a new trial, would operate to discharge him from the whole or any part of the debt. Fonbl. Eq. 28; 2 Hen. & Mun. 139; 3 Johns. Ch. Rep. 280; 4 Johns. Ch. Rep. 92; 1 Sch. & Lefr. 201, 204; 6 Johns. Ch. Rep. 235.
   Mr. Justice Clayton

delivered the opinion of the court.

The bill states that the complainant, at the request of the defendant Dorsey, agreed to become bound with him as surety for one Camp P. Newell, to Ballard and Franklin. Newell and Dorsey were already bound for the debt to Ballard and Franklin, but it was proposed to give them an extension of time, if they would procure the liability of complainant. The complainant agreed to become thus bound. A note was presented to him, which he signed under the belief that Dorsey was to be bound jointly with him; — the fact, however, turned out to be, that the new note was drawn payable to Dorsey, and was by him indorsed to Ballard and Franklin. At maturity it was paid by Dorsey, and suit brought upon it in the circuit court of Carroll county, and judgment rendered against both Newell and Pierce. The bill states that this judgment as to the complainant Pierce, was rendered without notice and so is void ; it prays for a new trial and for general relief.

The answer of Dorsey denies that he was to be bound upon the note jointly with complainant, but says it was understood by all, that he was to be indorser. States that at a term subsequent to the rendition of the judgment against’Newell and Pierce, the circuit court, at the instance of Pierce, permitted the sheriff to amend his return of the writ, so as to show it had not been executed upon complainant, and then set the judgment aside as to him ; states also that this judgment was taken by writ of error to the court of appeals and reversed. Answer denies all fraud.

The vice-chancellor dismissed the bill, and an appeal was taken to this court.

The great defect in this cause is the want of proof. There is no testimony upon any branch of the case. Whatever relief the party might be entitled to, if the bill were sustained by proof, it is not now possible to grant it, in the absence of all ■testimony. If it were made to appear, that the judgment was rendered without notice, of course it would be regarded as void; and the party would be entitled to relief against it in equity. It may be matter of regret, if the facts exist, that they were not made to appear; but in the present attitude of the cause, this court cannot apply a remedy.

The other point made is concluded by the judgment at law. The decree must be affirmed and the bill dismissed, without prejudice, as there has been no trial upon the merits.

Decree affirmed.  