March v. Barnet

Citations

• 121 Cal. 419
• 53 P. 933
• 1898 Cal. LEXIS 924

Syllabus

<p>Suretyship—Bond fob Release of Attachment—Payment of Judgment— Principal and Indorsee—Limited Subrogation.—In an action upon a promissory note, where judgment was rendered against the principal, and an indorser as such, and a bond for release of attachment against the property of the principal had been given, at his “ request and for his benefit, conditioned solely that if judgment should be recovered against him, the sureties would on demand pay the same, though each of the sureties became a party to the judgment against the principal, and was bound to pay it upon his default, yet there was no privity between him and the indorser, and as between them he remained a stranger to the judgment. Upon payment of the judgment hy one of the sureties, he simply performs the obligation of the principal, and can only look for reimbursement to him, and is entitled to be subrogated to the rights of the judgment creditors only as against the principal; and he has no more right to enforce the judgment against the indorser than the principal would have, if he had paid the judgment.</p> <p>Ip.—Seizure of Property of Indorser—Trespass—Damages.—The seizure and sale of the property of the indorser by the surety who paid the judgment, or his assignee, in pretended satisfaction of the judgment, fpr the reimbursement of the surety, was an unlawful taking of such property, and constitutes a naked trespass in those participating therein, for which they are jointly and severally liable to the indorser in the full value of the property taken, with interest from the date of the taking.</p> <p>Id.—Law of Case—Right of Contribution — Recovery Against Trespassers.—A decision rendered upon a former appeal hy the principal debtor, as to the right of contribution of the indorser against him, upon seizure and sale of his property upon execution, to which seizure the principal debtor was not a party, is not the law of the case, to preclude a recovery of damages against the parties who-had wrongfull