
    Horace Wilkins v. The Ohio National Bank.
    Where the holder of a joint and several obligation elects to sue one of the obligors who is only a surety thereon, it is not competent for the defendant by cross-petition or otherwise, to bring in his principal for the purpose of having the relation of principal and surety certified under 1 section 449 of the code, although the holder knew that such relation existed.
    Motion for leave to file a petition in error to the District •Court of Cuyahoga county.
    W. P. Cooke and Horace Wilkins being indebted to the Ohio National Bank upon a joint and several obligation, the original action was brought thereon by the bank against Wilkins alone.
    Wilkins, upon leave, filed an answer and cross-petition, setting forth that Cooke was principal debtor, and that he was surety only for Cooke, as the plaintiff well knew, and therefore prayed “ that said Cooke might be made and held as a party defendant in the cause, and that judgment be rendered against him as principal, and against this defendant as surety, as required by law, and defendant prays for such other and further relief as by law and equity he may be entitled to.”
    
      Cooke was, thereupon, served with summons, but made default, and afterward the court rendered judgment in favor of the bank against Wilkins, and refused to render judgment in favor of the plaintiff against Cooke, or to find that Cooke was the principal debtor and Wilkins only surety, to all of which Wilkins excepted.
    This judgment, rendered by the Court of Common Pleas of Cuyahoga county, was afterward affirmed by the district court.
    
      Nesbitt $ Lewis, and Arnold Green, for the motion,
    claimed that the court erred in not giving Wilkins the relief prayed for in his answer and cross-petition, and referred to secs. 88 (S. & C. 957), 500 (S. & C. 1095), 449 (S. & C. 1083), 83 (S. & 0. 968), 371 (S. & C. 1048), of the code of civil procedure, and argued that under sections 449 and 500 of the code, Wilkins was entitled to charge the principal or maker. That under sec:ion 83, he had the right to claim in his answer and cross-petition what he did—affirmative relief; that under section 371, he was entitled to the relief set up and prayed for in his answer and cross-petition ; and that under seetiou 114, he had a right to have the controversy determined with a view to substantial justice between the parties.
    Upon the question raised in the case the court was referred to Green v; Burnett, 1 Handy, 285 ; JResorr. McKenzie,. 2 Disney, 210; Bank v. Hunter, 4 Bosw. 646.
    
      Henderson § Kline, contra.
   McIlvaine, J.

Section 38 of the code provides: “ Persons severally liable upon the same obligation or instrument, including parties to bills of exchange and promissory notes,, may, all or any of them, be included in the same action, at' the option of the plaintiff.”

The plaintiff below exercised this option by suing Wilkins, who was severally liable with Cooke, alone.

Without denying the right of the plaintiff below to institute sucli' several action, Wilkins sought, by cross-petition, to avail himself of the provisions of section 449 of the code, which provides: “In all cases where judgment is rendered in any court of record within this state, upon any (other) 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.” In such cases, it is further provided that the property of the principal debtor shall be first exhausted.

It is quite clear that the cases provided for in this section are those only in which the principal and surety are jointly sued. It has no application where the surety or sureties are sued severaUy. And the right of the plaintiff to sue-the parties to such an instrument, severally, although the-relation of principal and surety may exist between them,, is not disputed by plaintiff in error.

It is contended, however, that where the holder of such an instrument eléets to. sue the surety alone, that such surety may, by cross-petition, bring in his principal, and then demand the protection prescribed in this section. The right of the surety in such case to thus bring in his principal, is sought to be worked out through the provisions, of section 500 of the code, which reads as follows: “A surety may maintain an action against his principal to compel him to discharge the debt or liability for which the surety is bound, after the same becomes due.”

Clearly, this section contemplares au original action ; but inasmuch as the creditor would be a necessary party to such action, it is claimed that where the creditor sues the surety alone, the latter should be permitted to avail himself of the right conferred in this section, by a cross-petition, bringing in the principal debtor. Some cases have been cited which seem to favor such practice. 1 Handy, 285; 2 Disney, 210; 4 Bosworth, 646.

But such practice having been adopted in the court below without objection, we will not now either approve or disapprove it, as we are well satisfied that if such practice be authorized, the surety’s relief must be sought and obtained under the cross-petition without hindrance or delay to the plaintiff in the prosecution of his original petition.

Iudeed, the cross-petition below did not seek the relief .authorized by section 500, but if it had, we are quite clear that the plaintiff’s right to pursue the surety, as he had ■elected to do, until his claim was satisfied, could not be thereby abridged.

By such cross-petition the case would not be brought within the purview of section 449, requiring the clerk to ■certify which defendant was principal debtor,' and which surety. The plaintiff would still be entitled to judgment •on his petition against the surety alone, whether the surety were entitled to an order on his cross-petition against the principal to pay the judgment or not.

Motion overruled.  