
    Cyrus S. Bittick v. John B. McEwen, Executor.
    
      Summary Remedy. Judgment by motion was rendered against a Sheriff and his living sureties, one surety being dead. On appeal to the Supreme Court, the judgment was reversed for error in the allowance of interest; but the Supreme Court thereupon proceeded to render such judgment as should have been rendered below. The recitals of this judgment failed to disclose the co-suretyship of the deceased with the rest, who were mentioned as “the sureties” upon the bond. These sureties discharged the judgment, and then severally moved against the Executor of their deceased co-surety for his part of the liability. Defense, that the recitals of the Supreme Court judgment ignoring the co-suretyship of the deceased thereby negatived it, and that it could not thereafter be established by the' bond against such negative, but that if this could be done, it would be fatal to the validity of that judgment, by showing that there was another surety not embraced in the motion and whose death was not disclosed by the record. Held, that the recitals of the judgment did not negative the co-surety-ship of the deceased, which was not in issue; and that the rule requiring summary judgments to recite fully the jurisdictional facts, does not apply to appellate judgments of the Supreme Court.
    FROM WILLIAMSON.
    From the Circuit Court, November Term, 1869. A. M. Hughes, J.
    T. ~W. Tueley for plaintiff.
    The undertaking of the sureties was a joint obligation, and under the Code all joint obligations are joint and several. Under sections 2789 and 3583, the original plaintiff had the right to move against the Sheriff and any one or more of the sureties then “in existence,” leaving them to settle their rights inter sese. If he moved against the Sheriff alone and succeeded,' this would be conclusive upon the sureties. They were not entitled to notice, and hence no one of them could be prejudiced by the want of it.
    But, of course, the plaintiff could not, by selecting some of the sureties to move against, prejudice their right to exact contribution from the rest; nor would the death of a surety exonerate his estate from the liability to contribute.
    It was correct to make separate motions, and not a joint motion. Williams v. Alley, Cooke, 257; 4 King’s Dig., sec. 10,159, p. 34.
    C. D. Berry for defendant.
    The basis of the present motion was the Supreme Court judgment. The language of this is the following: “It is therefore considered by the Court that B. R. Hughes, the defendant in error, recover of the said Hezekiah Hill, and the said Samuel Walters, Jeremiah Hill, John M. Winstead, Cyrus S. Bittick, W. H. S. Hill, Thomas Holt, and John Edmundson, the sureties on his official bond,” &c. Lemuel Farmer, the plaintiff’s testator, is not mentioned as one of the sureties, nor can his co-suretyship with those whose names are mentioned be gathered in any manner from the judgment. Those who are enumerated are described as “the sureties,” &c. This excludes the idea that there was any other surety. This judgment, thus negativing the co-suretyship of the deceased, Farmer, cannot be made the basis of a motion seeking to implicate his estate on account of such co-suretyship.
    The provision of the Code for a jury when the fact of the suretyship does not appear, has reference only to cases where the party’s name appears upon the paper, but not his relation to other parties as surety.
    But if the fact of co-suretyship may be established in the present case against the implied negation of the judgment, this will be fatal to that judgment. For the motion is given by statute “against the person in default, and such other persons made liable with him as may be in existence at the time of the motion.” The motion cannot be made against a part only of the sureties: all must be joined. Rice v. Kirhman, 3 Hum., 415; Fay v. Britton, 2 Heisk.,. 606.
    True, if one of the sureties is dead the remedy is complete against the surviving sureties. But in such case the record must show the death in order to sustain the judgment against the surviving sureties. Hearn v. Eioin, 3 Cold., 399.
    Upon a proper application, the Supreme Court might have remanded, to give opportunity to make the record show the necessary fact; but no such application was made. The establishment of the fact that there was an additional surety not embraced in the motion, and whose death was not shown by the record, invalidates the Supreme Court judgment. This void judgment coidd not sustain the motion for contribution in the present case; and its foundation being destroyed, this motion must fail.
   Feeemas, J.,

delivered the opinion of the Court.

This is a motion made in the Circuit Court of Williamson county by plaintiff against defendant as executor of Lemuel Farmer, deceased.

The facts are, that plaintiff, together with a number of others, was surety on the official bond of Hezekiah Hill, as Sheriff of Williamson, the deceased Lemuel Farmer being also one of said sureties. A judgment by motion was rendered in the Circuit Court against said Hill and his sureties except the said Farmer, who seems not to have been proceeded against. Said motion was for non-return of an execution from the Circuit Court of Williamson county. An appeal was taken to this Court, and the judgment of the Circuit Court reversed for error in the allowance of interest, but such judgment was thereupon rendered Rere as sRonld Rave been rendered by tRe Court below. TRis judgment was dis-■cRarged by a part of tRe sureties, and tRe present motion was made for contribution or payment of tRe pro rata sRare of Farmer, as one of tRe sureties on tRe bond. Several pleas were filed, and demurrers thereto, in tRe progress of- tRe cause, but issues were ultimately made, wRicR were submitted to a jury, who, under the direction ■of the Court, found a verdict in favor of the defendant, whereupon the Court dismissed the motion, from which judgment an appeal in the nature of a writ of error is prosecuted to this Court.

TRe Court instructed the jury as follows: “ That the copy of the Sheriff’s bond could not be used to contradict the facts appearing on the face of the judgment of the Supreme Court; that if it did not appear from the judgment of the Supreme Court that Lemuel Farmer was one of the sureties on the Sheriff’s bond, by the suggestion of his death or otherwise, that judgment could not be used as the foundation of a motion which sought to make Lemuel Farmer liable as one of the sureties, or his personal representative, and that sec. 3625 could have no application to this case.”

Sec. 3625 of the Code provides that “a co-surety against whom judgment has been rendered for the whole debt, or who has paid more than his ratable share of such judgment, may have judgment, on motion, against all the other parties to the instrument not included in the original judgment, for the ratable share of each.” And by the next section it is provided that “the remedies given by this article lie both for ’ and' against personal representatives of deceased parties.” This statute gives the motion in two cases; first, in favor of the co-surety against whom a judgment has been rendered for the whole debt; second, in favor of one who has paid more than his ratable share of such judgment. In either case, he may have judgment on motion against all the other parties to the instrument not included in the original judgment, for the ratable share of each; that is, for the ratable share which each should pay of said judgment, by virtue of the liability created by the instrument to which they are all parties, and in which they are jointly bound.

"We have in this record the precise case provided for by the statute; a co-surety against whom a judgment has been rendered and who has paid- more than his ratable share of the judgment, seeking a judgment by motion against another party to the instrument not included in the original judgment, for the amount of such party’s ratable share of the common liability.

On looking at the judgment in the Supreme Court it does not appear, however, that Lemuel Farmer was one of the sureties on the bond, by recital, nor is the fact of his death suggested as a reason why the others are proceeded against without him. It is insisted that this judgment is conclusive of the fact that he is not a party to the bond; or, if this be not so, that the judgment is void because not reciting the fact of. his death, or the grounds of proceeding against the other sureties without him; and so the Court seems to have held.

In this there is error. The rule of recital of all the facts necessary to give the Court jurisdiction to render the judgment in case of summary proceedings, has never, as far as we are aware, been applied to judgments of this Court, and is only applicable to inferior Courts.

This Court takes jurisdiction and renders judgment by virtue of appellate jurisdiction conferred by the Constitution, and exercises it by appeal, writ of error, or such mode as may be prescribed by legislation, and its jurisdiction is not to be tested, as that of inferior Courts, by the recital of facts contained in its judgment in a case like this. The judgment of this Court is not void on its face for this cause. The judgment not being void, its recitals do not purport to exclude the idea that Lemuel Farmer was surety on the bond; that fact was not in issue or adjudicated by this Court; consequently the fact of his being a party to the instrument by which the liability to the judgment was created, might well be shown by production of the bond, as was done in this ease.

On the question of fact, if it could be inquired into in this proceeding, of the failure of the Sheriff to return the execution, and its receipt by the Sheriff, we think the evidence shows clearly that the execution did come to his hands; as the entries made by the Clerk at the time, in the usual course of his business, supported by his testimony that he always made the entries at' the time of the transaction, would outweigh the negative statement of the delinquent Sheriff.

For the errors referred to, the case will be reversed, and judgment pronounced here in favor of the plaintiff in the motion, for the ratable share of Farmer, the testator of defendant.  