Thomason v. Wade

Blandford, Justice. In I860, Lewis Wright obtained a judgment in Fulton superior court against Benjamin P. Davis and Daniel Crews, as makers, and John Thomason, as indorser; a writ of execution issued upon this judgment, and the same was levied, for the use of Thomason, the indorser, upon certain lands as the property of the makers, the defendants, to which property, so levied on, Davis Wade interposed his claim. On the trial of the claim case, claimant moved to dismiss said levy, upon the ground that it did not appear that Thomason, the indorser, had paid the same, and there was no entry on the execution to that effect. Plaintiff [161] proved that Thomason, the indorser, had paid the principal, interest and costs due on said execution to Ezzard & Collier, the plaintiff’s attorneys, in 1863, and thereupon Mr. Collier, one of the firm of Ezzard & Collier, then and there entered a receipt on said execution for the principal, interest and costs as received from Thomason in 1863. The court then sustained said motion, and dismissed said levy, and of this ruling Thomason complains, and this is the error assigned. The Code, §2171. provides that indorsers who pay off a judgment shall have control of the same as securities are allowed by §2167 of the Code, and by this latter section a security who pays off a judgment, by entering such payment on the execution by the plaintiff’s attorney, or other collecting officer, may control the same to the same extent and shall be subrogated to all the rights of the plaintiff in execution. It is the payment of the money by the surety or indorser that gives the right to control the execution. The entry upon the fi. fa., as provided for, gives the right to the surety or indorser to control the fi. fa,., over any objections of the original plaintiff; but where the original plaintiff permits a surety or indorser to have the execution levied on the property of the makers or principal defendants for the benefit of an indorser, defendant, the claimant to such property levied on, can make no objection on this account; it is no business of his who controls the fi.fa., and the payment by the security or indorser does not extinguish the judgment as to the principal defendants, and the question as to who shall control the fi. fa. is between the plaintiff and the indorser or security; it is a matter with which the claimant has nothing to do. Butin this case, when the entry was made on the execution by the attorney for the plaintiff in execution, the statute was literally complied with ; it was no amendment of the writ or levy, and the court erred in dismissing the levy. Judgment reversed,