Christal v. . Kelly

Andrews, Ch. J. The principal question on the merits presented on this appeal is, whether the sureties in an undertaking given to discharge an attachment in an action originally commenced against two defendants, as copartners, to recover on a firm note, are liable to pay a judgment subsequently recovered on the note against the original defendants and another person, a partner in the firm, who was brought in after plea in abatement interposed by the original -defendants, by stipulation between the attorneys for the original parties, for the amendment of the summons and complaint, and his subsequent voluntary appearance in the action, the summons being amended by inserting the name of the third defendant, but without the order of the court or the consent of the sureties in the undertaking. The undertaking was executed in conformity to the statute. (Code, § 241.) It was entitled in the action between the original parties and recited the issuing of an attachment, the appearance of the defendants, and that they were about to apply to have the attachment discharged, and following the recital was the undertaking of the sureties in the sum of $15,000 “ on demand to pay the above-named plaintiffs the amount of the judgment which may be recovered against the above-named *290 defendants in this action, not exceeding the above-mentioned sum.” The defendants mainly rely upon two grounds in answer to the action : Fvrst, that the judgment was not recovered in the action in which the undertaking was given, but in a new action against three defendants, and that the judgment recovered is not, for that reason, within the terms of the undertaking; and, second, that the undertaking only extends to a judgment recovered against the two defendants originally named when the undertaking was given, and does not embrace a liability for a joint judgment against those persons and another. We are of the opinion that neither of these objections is well founded. The amendment of the summons and complaint, by consent of the original parties, and without the order of the court, followed by the subsequent voluntary appearance of the party not originally brought in, was not the commencement of a new action, but was the continuance of the original action, with the addition of another defendant. The cause of action was unchanged, to-wit: the obligation of the firm of Christal & Struthers. The necessity for the amendment arose solely from the fact disclosed by the- original answer, that Charles E. Christal was a member of the firm. He having been brought in, the suit proceeded to judgment. If the plaintiffs, instead of obtaining the. stipulation of the original defendants to an amendment, had applied to the court for leave to bring in the additional defendant, no doubt could be entertained of the power of the court to grant the relief. The power of the court to amend any process, pleading or proceeding by adding or striking out the name of any party is expressly given. (Code, § 173.) The section referred to, however, is declaratory only. The power to amend process and pleadings is inherent in the court as a part of its ordinary jurisdiction. When a new party is brought in by order of the court, no one, we presume, would claim that a new action was commenced. The party brought in would become a party to an existing action, and not to another and distinct action. Otherwise the original defendants might set up, by answer to the amended suit, a former action pending, and this would be manifestly *291 absurd. The fact that the summons was amended by the stipulation of the parties, without the order of the court, does not, we think, affect the validity of the judgment.. The Revised Statutes (2 R. S. 425, § 9) provide that no process shall be amended without the order of the court. But they also provide (2 R. S. 425, § Y) that no judgment entered by default shall be reversed, impaired, or in any way affected for any want of writ, original or judicial, or for any default or defect in process, or any informality in entering a judgment or making up the record thereof, or any default or negligence of any clerk or officer of the court, or of the parties or their attorneys, by which neither party shall have been prejudiced. This section covers the alleged defect on account of the omission to procure the order of the court allowing the amendment. The answer of the defendants had been withdrawn before judgment, and the judgment was entered by default. (See Oakley v. Becker, 2 Cow. 454.) The parties, having consented to the amendment, cannot object to the judgment on the ground that no order was procured; and the principals being bound thereby, the sureties are bound also. (Casoni v. Jerome, 58 N. Y. 315; Scofield v. Churchill, 72 id. 565.) Besides, assuming the judgment to be irregular, that fact does not tend to establish that it was rendered upon a new cause of action created by the amendment. • We conclude, therefore, that the first ground of defense is not well taken, and that the judgment is in the action in which the undertaking was given, and meets that condition of the defendants’ obligation. The second ground of defense proceeds upon the assumption that the undertaking to pay any judgment against the original defendants, does not apply to a judgment against them and another defendant brought in by amendment after the undertaking was executed. It is well settled that sureties are only bound by the terms of the obligation, and their liability cannot be extended to cases not within the fair construction and meaning of the language used. (Church v. Simmons, 83 N. Y. 261, and cases cited.) In determining whether the judgment against the three defendants is a judgment against the defend *292 ants originally named, within the meaning of the undertaking, it is important to bear in mind that the undertaking was given under a statute which prescribed the terms of the obligation to be given, and in that sense the language is the language of the statute, and not that voluntarily chosen by the parties. It is also important to consider the object of the statute authorizing the undertaking. It was intended for the benefit of defendants whose property had been, or might be, attached under process, to enable them to substitute for the property which had been or might be attached, security for the payment of any judgment which might be recovered in the action, and thereby relieve their property from the actual or apprehended lien of the process. This is sufficiently clear upon general considerations, but is rendered very plain by the provision authorizing the court to limit the undertaking to double the appraised value of the attached property. (Code, § 241.) It is also clear that except for the undertaking, the attached property would have been available to satisfy the judgment obtained against these defendants. If the plaintiffs could have proceeded against the property, in case the undertaking had not been given, it seems to follow that they can proceed against the sureties, who have substituted their obligation in place of it. So also in a case where the sureties have by their intervention before actual levy of the attachment prevented the execution of the process, they are liable within" the fair intendment of their contract, for a judgment recovered against their principals, which might have been secured by the attachment, although the judgment included other defendants than those named when the undertaking was executed. For these reasons we think the second ground of defense fails also. There are some questions of a mere technical character remaining to be considered. The court allowed a certified copy of the attachment to be given in evidence. The grounds of the objection were, that no authority to issue the attachment •had been shown, and that it was not shown that "an attachment had been granted. A sufficient answer to the objection is that the evidence admitted was immaterial. Another decisive *293 answer is that the undertaking recited the issuing of an attachment, and that was sufficient proof of the fact. (Coleman v. Bean, 3 Keyes, 94; Haggart v. Morgan, 5 N. Y. 422.) The defendants excepted to the reading of the original summons and complaint attached to the judgment-roll, on the ground that they formed no part of the record. The original papers were admissible to show the identity of the action on which the judgment was recovered, with the action mentioned in the undertaking. Assuming that these papers were not properly made a part of the record, their admission in connection with it, was not error. The objection was not taken that they should have been proved aliwnde. The defendants subsequently read the original complaint in evidence as part of their case. The point is now raised that the judgment recovered contains no proof of personal service of the summons, and that this was esential to authorize an entry of judgment by the clerk as upon a default. This objection was not taken on the trial. The judgment recites an appearance by the defendants. A voluntary appearance is equivalent to the personal service of a summons. We think this fact justified the entry of judgment by the clerk. There are no other questions in the case which need special consideration. We find no error in the record, and judgment should be affirmed. All concur. Judgment affirmed.