Smith's Executors v. Anderson

Bartol, J., delivered the opinion of this Court. The result of a careful examination of the questions involved in this appeal, and of the authorities cited in the argument, is to satisfy this court of the correctness of the following propositions: 1st. That an original judgment is not merged, or destroyed by a judgment of supersedeas under our Acts of Assembly. There is no authority for the contrary proposition, and the doctrine of merger does not apply.

Merger occurs where one security is of a higher or more solemn nature than the other; but in the case of two judgments for the same debt, each being of equal solemnity, there is no merger. The plaintiff may pursue his remedy at his option, either on the original or supersedeas judgment. Suppose a judgment against A and B, and B dies after judgment, then A with C and D as his sureties, supersedes, qan it be maintained that the creditor may not revive the original judgment against the representatives of B, and have execution against the assets of B? The only restraint on the plaintiff is, that he shall recover no more than one satisfaction of the same debt. 2nd.

If a judgment be rendered against A, B and O, A being principal, and B and C his sureties, and afterwards the judgment be superseded by A, B and C, the original defendants, with D and E as sureties, in such a case D and E are sureties for A, B and C, who, as to D and E, are all principals. The sureties of the original debtor are not co-sureties with the new parties on the supersedeas, in the sense in which the term co-surety is used in the law, with reference to the right of contribution. It is true, that in one sense all* are sureties for the principal debtor for the same debt; but as between themselves, the obligation of the latter is subsequent to, and secondary to, that of the former. This proposition is very clearly expressed in the opinion delivered by Judge Earle, in the case of Hollingsworth vs. Floyd, 2 H. & G., 87, 91 , and although not directly involved in the case, or strictly necessary for its decision, we are all of ⁵²⁷ opinion that the law, as announced in the opinion of the learned judge, was sound, and supported both by reason and authority'.

In Semmes vs. Naylor, 12 G. & J., 361 , principles very analogous were announced, and are not inconsistent with the decisions in the cases of Creager vs. Brengle, Colegate vs. The Savings Bank, Norwood vs. Norwood, or the cases in 2 Vernon and