Jamieson v. Capron

Mr. Justice Sterrett delivered the opinion of the court, The contention of the plaintiff in error is that he was discharged from liability as surety on the property bonds in consequence of the amendments in the replevin suits, made without authority of law, as he claims, and without his knowledge or consent. The actions gf replevin were brought by Henry P. Duncan, Samuel Duncan and Stephen Duncan, executors of the last will and testament of Stephen Duncan, deceased, against Eli H. Dunn et ah, who claimed the property replevied, gave bonds to the sheriff in the usual form, and pleaded non eepit and property, upon which issue was joined. Subsequently, on application of the plaintiffs, an amendment was allowed in each case, by which the words “ executors of the last will and testament” were stricken out, and the words “heirs at law” substituted, and the names of other'heirs at [19] law were added as plaintiffs. As thus amended, the cases were tried and resulted in judgments for the plaintiffs, who then brought the present suit on the property bonds, in the name of the sheriff to their use against the plaintiff in error, and judgment was obtained against him for the amount recorded in the actions of replevin. If the amendments were unauthorized, it will scarcely be pretended that the surety in the property bonds would not be discharged. But so far as the records in the replevin suits given in evidence in this case have been brought to our notice, there is nothing to show that the amendments were either unauthorized or irregular; on the contrary they appear to have been within the letter and spirit of our statute of amendments. They consisted, as we have seen, first in changing the character in which the plaintiffs sued from executors to heirs at law, and secondly, in adding the names of other heirs at law who were not executors. Amendments, similar in principle, have been frequently sanctioned: Kaylor v. Schaffner, 12 Harris 489; Schollenberger v, Seldonridge, 13 Wright 83; Cochran v. Arnold, 8 P. F. Smith 399; Wescott v. Edmonds, 18 Id. 34. It is said in Kaylor v. Schaffner, supra, that whenever it appears a mistake has occurred “ it is the duty of the court to correct it, taking care that the amendment be not used for the purpose of introducing a cause of action substantially different from that on which the suit was actually though informally brought.” The case before us is distinguishable from Kille v. Ege, 1 Norris 102, in this, that the original plaintiffs in that case had no cause of action, either in their own right or in any representative capacity, and were accordingly nonsuited. The plaintiffs who recovered were new parties, brought upon the record two years after suit was commenced, strangers to the original plaintiffs and in no way connected with them by privity of interest or otherwise. The three plaintiffs who originally sued in this case were in fact heirs at law of Stephen Duncan, deceased, and the mistake that appears to have been made was in styling them executors instead of heirs; and that was clearly amendable. There was no change in the cause of action. The basis of claim before as well as after the amendment appears to have been title derived from Stephen Duncan, deceased. The parties brought upon the record were not strangers to the claim. They were joint heirs with the original parties, and all derived title to the property in controversy from a common source. It follows, therefore, that the defendant had no available defence, either on the ground that the amendment was unauthorized, or that it introduced a new cause of action. But, it is further contended that, inasmuch as there could have been no recovery by the original plaintiffs in their capacity as executors, the effect of the amendment was to change or increase the [20] liability of the surety, and that he was thereby discharged. This would undoubtedly be correct if his obligation as surety for the defendants had not contemplated a trial and judicial determination of the cause of action, on which the replevin suits were based, according to the established course of practice in such cases, because it is a just and reasonable principle of law that the contract of a surety shall not be changed without his consent, express or implied. When a person becomes surety for another in a judicial proceeding, there is an implied understanding that it shall be conducted according to the provisions of law relating thereto. The statutes regulating amendments, as well as other incidents of trial, are as much a part of the contract, in the contemplation of the parties thereto, as if they were embodied in the condition of the bond. There is and necessarily must be this distinction between contracts of suretyship in ordinary business' affairs, and those connected with judicial proceedings. If the holder of an obligation against two, with a surety for both, releases one of the obligors, he thereby, for obvious reasons, discharges the surety; but, if a person becomes surety for two administrators or guardians, and one of them is discharged by court, without the knowledge or consent of the surety, his liability for the official acts of the remaining administrator or guardian still continues. The reason of this is, that the surety, when he entered into the obligation for both, knew, or must be presumed to have known, that the court had power to discharge one, and thus devolve all the duties of the office on the other, and in view of this he consented to the condition that the court might exercise any authority with which it was invested, without releasing him from liability as surety. In Hocker v. Woods’s Ex’rs, 9 Casey 466, the question was as to the liability of the surety for two joint guardians, one of whom was discharged by the court, and it was held that his liability for subsequent acts of the remaining guardian still continued. The distinctive features of a surety’s contract in judicial proceedings are there adverted to, and it is said: “ The Acts of Assembly, under which official bonds are given and judicial contracts are made, enter into and modify such bonds and contracts; and the parties must be considered as .contracting with the view to what the law prescribes, and as assenting to all the legal consequences of their act.” So, in the present case, the plaintiff in error, in becoming surety for the defendants in the actions of replevin, must be considered as having contracted with reference to the law applicable to the trial and final determination of the cases, and with the view of becoming responsible for the amount that might ultimately be adjudged against the defendants. What has been said has reference only to such amendments as are authorized by the statutes. If a new cause of action is introduced or new parties brought upon the record against whose [21] claim the Statute of Limitations has fully run, and a recovery is permitted, the rule as to liability of the surety would be different. The conclusion reached by the learned judge in this case was correct. Judgment affirmed.