Grizzle v. Fletcher

• Decision Date: 16 September 1920
• Citation: 105 S.E. 457
• Parties: GRIZZLE. v. FLETCHER et al.
• Court: Virginia Supreme Court

105 S.E. 457

GRIZZLE.

v.FLETCHER et al.

Supreme Court of Appeals of Virginia.

Sept. 16, 1920.

Error to Circuit Court, Russell County.

Action by E. S. Smith against Walter Fletcher and A. L. Grizzle. Judgment for plaintiff. Motion by the first-named defendant to quash an execution obtained in the name of the plaintiff by the last-named defendant, who had paid the judgment, was denied, and the former brings error. Judgment amended by quashing execution and as amended affirmed.

W. W. Bird, of Lebanon, for plaintiff in error.

H. A. Routh, of Lebanon, for defendants in error.

BURKS, J. On September 21, 1910, E. S. Smith obtained a judgment in the circuit court of Russell county against Walter Fletcher and A. L. Grizzle for the sum of $230, with interest from August 30, 1909, and costs. In the debt upon which this judgment was obtained Grizzle was surety for Fletcher. On April 2, 1912, Grizzle paid the full amount of the judgment to the attorneys for Smith, the plaintiff, and took from said attorneys an assignment of the judgment. On January 28, 1919, Grizzle, claiming to be assignee of the judgment, caused an execution to be issued from theclerk's office of Russell circuit court in the name of E. S. Smith against Walter Fletcher, alone, reciting that it was issued upon a judgment which had been obtained in the name of E. S. Smith against Walter Fletcher. No such judgment in fact had ever been rendered, but Grizzle, claiming to be the owner of the judgment first aforesaid, caused the execution to be issued in this form. This execution was levied on personal property belonging to Fletcher, who thereupon executed a forthcoming bond payable to Grizzle. Fletcher made a motion to quash the execution and forthcoming bond taken thereunder on the ground that no valid execution could be issued on such judgment. The trial court quashed the forthcoming bond, but not the execution under which it was taken. It should have quashed both.

The purpose of a writ of fieri facias issued on a judgment for money is to enforce the collection of the judgment, and it must follow, in every material respect, the judgment upon which it was founded. If the judgment is a joint judgment against several, or in favor of several, the execution must be joint also. This is true even though one or more of the parties, plaintiff or defendant, has died since judgment was obtained. Holt v. Lynch, 18 W. Va. 567; Snavely v. Harkrader, 30 Grat. (70 Va.) 487. In a common-law execution of fieri facias the debtors are all equally bound to the creditor. There is no priority among them, and the whole execution may be made out of the property of the surety, although the principal has abundant property out of which it could be made. The surety is powerless to prevent this, because so far as he is concerned the parties are all principals. The result is that when an execution has been paid off by any one of the parties, it is satisfied. The same is true of a judgment. In Manson v. Rawlings, 112 Va. 384, 71 S. E. 564, it is said:

"In general the liability of the surety to the creditor is the same as that of the principal. The responsibility of both is primary; and, at law, the creditor rests under no obligation to look to the principal or to his property or to exhaust his remedies against him before resorting to the surety. He may collect his debt out of either."

As said in Simmons v. Lyle, 32 Grat. (73 Va.) 752, 763:

"When the surety pays the debt, the lien of the execution is gone."

The writ has become functus officio. There is nothing of value left in the creditor, so far as the execution is concerned, which he can assign to any one. If he should sue out a new execution against the principal only, it would be quashed on a motion of the defendant because it did not conform to the judgment, and also because the judgment had been satisfied by a party primarily liable therefor. So also, if the creditor sued out the...