
    Thomas R. Points v. Jacob Jacobia.
    
    July Term, 1873.
    1. Principal and Surety: Judgment: Justices’ Courts. In an action before a justice of the peace, on a promissory note, against two or more defendants, the provision of the. Code of Civil Procedure which authorizes a judgment to be rendered against one of the defendants as principal debtor, and against another as surety, is applicable.
    2. -: Contribution. Where such a judgment has been rendered against one of the defendants as principal, and against another as surety, in the absence of the supposed principal, and without any notice to him, such judgment is not a final adjudication, as between him and the other defendants, as to who is principal and who is surety, but is only a direction to the officers that the property of the person who is certified as principal shall be first taken in execution; and if such person is not in fact principal, but only a surety, he may pay the judgment, and then have an action for contribution against the other sureties.
    
    
      [3. Statutory Construction. As a rule courts construe statutes so as to> give every portion of the statutes some force and effect. * Kansas City,. T. & W. R. Co. v. Albright, 6 Pac. Eep. 277. J
    Error from Pottawatomie district court.
    The case is stated in the opinion.
    *4. L. Williams and J. S. Merritt,
    
    for plaintiff in error.
    No demurrer was interposed by Jacobia, but the court treated the answer of Points as insufficient, and held it constituted no defense. There are two questions in the case: (1) Did the justice have the authority to render such a judgment ? (2) If he did, it is final and concludes the matter. In this state, any defense the party may have, legal or equitable, may be set up in a justice’s court. In such a case, as the one on the original note, as between the debtors, such a defense is good at law. Craythorne v. Swinburne, 14 Yes. Jr. 170. As between all the parties, such a defense is good in equity. Byles, Bills, 192. A court of record may render judgment upon any instrument of writing in which two or more persons are jointly or severally bound, against part of them as principals, and part as sureties. Section 470 of the Code, and section 185 of the justices’ act, makes the provisions of said section 470 applicable to proceedings before justices. Section 139 of the justices’ act indicates the same. A court may render judgment against one maker of a note as principal, and one as surety, and thereby determine the ultimate rights of the parties. Bose v. Williams, 5 Kan. *483. Suretyship is a. competent matter of defense to a note joint upon its face. Code, 470; Eose v. Williams, supra. A decision of a court of competent jurisdiction is conclusive and binding on all other courts. Simpson v. Hart, 1 Johns. Ch. 91. The judgment of a court of competent jurisdiction is final, not only as to the subject-matter thereby determined, but as to every other matter which the parties might have litigated in the cause, and had decided. Yail v. Yail, 7 Barb. 226; Bruen v. Hone, 2 Barb. 586; 11 Wis. 401. The same point or question, when once litigated, and judgment rendered thereon, shall not be again contested in any subsequent suit, though the causes of action differ. Doty v. Brown, 4 N. Y. 71. Estoppel by judgment extends to real and substantial parties, who, although not upon record, had a right to control the proceedings and appeal from the judgment.
    Castle v. Noyes, 14 N. Y. 829.
    *7?. S. Hick, for defendant in error.
    The entry made by the justice on his docket, in the case of McCormick & Bro. against the two Jacobias and Points, that Points was surety for his co-defendants, is not a judgment, and is no bar to Jacobia ’s action against Points for contribution. Section 470 of the Code does not authorize the rendering of a judgment in a court of record against one defendant as principal debtor and another as surety. In case of a trial by jury the question of who is principal and who surety is not submitted to the jury, and they make no finding upon it, but it comes before the court after the verdict of the jury is rendered, if at all, and the clerk certifies “which of the defendants is principal debtor, and which are sureties or bail, ” merely as a guide in issuing the execution; and the certificate is not a judgment, or any part of a judgment. A defendant has no notice, either in the summons or any of the pleadings, that such a matter is going to be adjudicated upon between him and his co-defendants. But whether this be so or not in courts of record, there is no authority of law for a justice of the peace rendering such a judgment or making such a finding. Nowhere is such authority conferred upon him. Section 185 of the justices’ act and section 470 of the Code together cannot beheld to confer the authority, as claimed by plaintiff in error, for the latter section seems to be worded purposely so as to guard against and preclude any such construction. “In all cases where judgment is rendered in any court of record,” it reads.
    
      
       This case referred to Higly v. Ayres, 14 Kan. 339.
    
    
      
       See full note to Ray v. Brenner, post, *106. If a judgment is recovered from co-sureties of a promissory note, each surety is liable for his aliquot portion of the costs, and one is not relieved of such liability after the action has been entered by paying his portion of the amount of the note. Van Winkle v. Johnson, 5 Pac. Rep. 922. In a suit for contribution .in the matter of costs between co-sureties, after judgment against them upon their undertaking, it will not avail' the defendant to show that he was not served with process in the origin'll action. Van Winkle v. Johnson, 5 Pac. Rep. 922. Contribution cannot he enforced by surety who has been fully indemnified. Rheinehart v. Johnson, 17 N. W. Rep. 452. Contribution may be enforced in equity from estate of deceased-co-surety in favor of surety who has paid judgment. Rynearson v: Turner, 17 N. W. Rep. 219. When sureties are made parties defendant to an action against their principal by a co-surety to recover the amount paid in settlement of claims against principal, the judgment obtained is conclusive, as to the amount for which it is rendered, against such sureties, where they allow a default by reason of negligence or confidence in their co-surety. Sutliff v. Brown, 21 N. W. Rep. 164. Although the lien or obligation he extinguished at law by the payment of the debt, yet i or the benefit of the surety it continues in equity in full force. Mason v. Pierron, 23 N. W. Rep. 119. Fraudulent conveyance by surety — enforcing contribution — setting aside deed. Mason v. Pierron, 23 N. W. Rep. 119. Estate of decedent — action by surety to compel distribution. Ernst v. Nan, 23 N. W. Rep. 492. Whether a right of contribution in favor of defendant, and against plaintiff, in an action on a claim due to such plaintiff in an individual capacity, is a proper subject of set-off, or whether a surety can claim a right of contribution against a co-surety in an action to which the principal is not a party, without showing the insolvency of such principal, quaire. Willis v. Davis, 3 Minn. 17, (Gil. 1,) and Schmidt v. Coulter, 6 Minn. 492, (Gil. 340.) A surety, after paying a judgment recovered against himself and his principal, may sue the latter for reimbursement, even when he is entitled to enforce the judgment by execution. Kimmel v. Lowe, 28 Minn. 265; S. C. 9 N. W. Rep. 764. The right of contribution exists between sureties for the same principal and debt, though they become such by different instruments and at different times. Qucere, whether the right of contribution between su eties can he excluded unless by express contract. Young v. Shunk, 30 Minn. 503; S. C. 16 N. W. Rep. 402.
    
   Yalentine, J.

On May 2, 1872, C. H. McCormick & Bro. brought an action before a justice of the peace on a certain promissory note against Thomas E. Points, Josephus Jacobia, and Jacob Jacobia. Personal service of summons was had on Thomas E. Points and Jacob Jacobia. No service was had on Josephus Jacobia, and he made no appearance in *the case. Neither did Jacob Jacobia make any appearance in the ease. At the time the action was set for trial Points appeared before the justice, and filed a bill of particulars, admitting that he executed the note, but claiming that he did so as a surety only, and that the other defendants were the principals thereon. He then introduced evidence tending to show that he was only surety as aforesaid. The justice then rendered a judgment in favor of said McCormick & Bro. for the amount of the note, and against Jacob Jacobia as principal, and Thomas R. Points as surety. After-wards Jacob Jacobia paid said judgment, and then commenced this action against Points for contribution, claiming that Josephus Jacobia was the principal, and that he, as well as Points, was only a surety. The action Was tried, and judgment was rendered in favor of Jacobia and against Points, and Points now seeks to reverse that judgment.

1. The first question arising in this case is whether a justice of the peace has power in any case to render judgment against one of two or more defendants as principal debtor, and against another of the defendants as surety. Section 470 of the Civil Code pi’ovides as follows : “Sec. 470. In all cases where judgment is rendered in any court of record within this state upon any instrument of writing in which two or more persons are jointly and severally bound, and it .shall be made to appear to the court, by parol or other testimony, that one or more of said persons so bound signed the same as surety or bail for his or their co-defendant, it shall be the duty of the clerk ■of said court, in recording the judgment thereon, to certify which of the defendants is principal debtor, and which are sureties or bail.” And said section further provides that in all cases the property of the principal debtor shall be exhausted before any of the property of the surety or bail shall be taken in execution. Gen. St. 720, 721. It is claimed that this section applies to courts of record only, and not to justices’ courts, which are not courts of record. But we should think that section 185 of the justices’ act would make this section applicable *to justices’ courts as well as to courts of ■record. Said section 185 reads as follows: “Sec. 185. The provisions of an act entitled ‘An act to establish a Code of Civil Procedure,’ which are in their nature applicable to the jurisdiction and proceedings before justices, and in respect to which no special provision is made by statute, are applicable to proceedings before justices of the peace.” Gen. St. 814.

It is claimed, however, that the provisions of said section 470 of the Civil Code are not, in their nature, “applicable to the jurisdiction and proceedings before justices.” But why they are not applicable we are not definitely informed. It would seem, however, from section 139 of the justices’ act that the same legislature that passed both the Code and the justices’ act intended that the provisions of said section 470 should be applicable to justices’ courts. Said section 139 provides, among other things, as follows: “The execution must require the constable substantially as follows: * * * Second. If it be a case where any of the judgment debtors are certified on the justice’s docket as surety, it shall command that the money be made of the personal property of the principal debtor, and, for want thereof, of the personal property of the surety. In such case the personal property of the principal subject to execution within the jurisdiction shall be exhausted before any of the property of the surety shall be taken in execution.” Gen. St. 805. Now, if said section 470 of the Code does not apply to a justice’s court, then that portion of section 139 of the justices’ act above quoted is absolutely nugatory, and can have no possible application anywhere. This is not the manner in which courts construe statutes. Courts, as a rule, construe statutes so as to give every portion of the statutes some force and effect, — some application and some operation. With regard to the application of statutes of other states similar to ours, see Swan’s Treatise for Justices of the Peace, 195, e. 18, § 14.

We suppose no question will be raised because the note sued on in this ease is in form joint, and not joint and several; for under our statutes every such note *is several as well as joint. Gen. St. 183, e. 21, §§ 1, 4.

We think that such a judgment as was rendered in this case in favor of McCormick & Bro., and against Jacob Jacobia as principal and Thomas B. Points as surety, may be rendered before a justice of the peace. When we use the word “judgment,” we do not mean to say that it is in fact a judgment between the defendants, but we mean only that it is a judgment in favor of'the plaintiff, and against one of the defendants as principal, and against the other as surety. We do not now wish to say what it is, as between the defendants,— whether it is a judgment or an order or something else. Section 470 of the Code seems to contemplate it as a certificate of the clerk upon a determination by the court. Section 139 of the justices’ act seems to contemplate it as a certificate of the justice.

The next question is, what is the force and effect of said judgment ? Is it a judgment or an order or something else? Is it an adjudication at all, as between the defendants? Must the question be heard upon pleadings, or upon a written motion, or merely upon an oral suggestion ? Must the supposed surety have a summons or a notice served upon the supposed principal, that such a question will be heard ? And when the question is heard, is it a final determination of the rights of the parties? Or is the certificate of the clerk or justice, if made, merely a direction to the officers that the principal’s property must first be taken in execution; and if such certificate is not made, no adjudication at all? It seems to be settled that “no pleading or other formalities are required by the Code to bring the question (of who is principal and who is surety) before the court, but simply the production of the testimony to make the facts appear.” Kupfer v. Sponhorst, 1 Kan. *75, *85; Rose v. Madden, 1 Kan. *445; Kelly v. Collins, 11 Ohio, 310. From this it would seem that in every case where two or more persons are sued on any written instrument, the question of who is principal, and who is surety, is pending, for all the purposes of this proceeding, without pleadings, motions, additional Summons, notice, or any other kind of writing whatever. Now, if this is so, then if the rendering of a judgment against the defendants, with a certificate that one of them is principal and the other surety, is a final determination of the rights of the defendants as between themselves, and that one of them is merely a surety, then the rendering of a judgment against the defendants without this certificate would equally be a final determination of the rights of the defendants as between themselves, and that neither of them was merely a surety. This can hardly be the law. Final judgments are never rendered in courts of record in such a loose, informal, and summary manner. If such a proceeding as this is the final determination of the rights of the defendants, as between themselves, then we may have the ultimate rights of a party determined in his absence, without any actual notice that such a determination would be had, without any written statement of the claim of the other defendant against him, and without any record of the determination except the said certificate of the clerk attached to the judgment. We are of the opinion that this certificate of the clerk is intended only as a direction to the clerk in issuing the execution, and a direction that when he issues the execution he shall direct the sheriff to levy on the property of the principal first, and not to levy on the property of the surety until the property of the principal shall first be exhausted. We confine our decision strictly to this particular case. -In a ‘case where the defendants really litigate the question, we express no opinion. The defendants might all appear, file pleadings, and introduce evidence under them, or they might litigate the question on a written motion, or they might introduce their evidence without filing pleadings, or any written motion. In all these cases we express no opinion. Neither do we express any opinion as to the extent, scope, and operation of section 480 of the Code. We think, however, the plaintiff, Jacobia, may recover against the defendant, Points, in this action.

The judgment of the court below is affirmed.

(All the justices concurring.)  