Bradford v. Frederick

Mr. Justice Paxson delivered the opinion of the court, December 30th 1882. This was a suit against the sureties on a property bond given in action of replevin. Payment was resisted upon two grounds, viz: 1. That there was no judgment of the court against Bradford in the replevin suit; the said suit having been settled by the parties and a judgment confessed, without the knowledge of the sureties, and 2. That other matters were embraced in the settlement which had no connection with the replevin suit. Eldred v. Bennett, 9 Casey 183, was cited in the support of the first proposition. That case decided that an award, embracing among others, the matter in controversy in the action of replevin, on which no judgment has or can be entered, is not sufficient to fix the sureties in a property bond. We have no doubt of the soundness of this ruling. It has little application to the present case however for the reason, that here we have a judgment in due course of law. It was confessed by the party it is true, but it is none the less a judgment. Prior to the confession of judgment, Frederick, the plaintiff in the replevin, had entered a rule of reference under which arbitrators were chosen, and an award made in his favor for $1,148.89. The defendant Bradford appealed from this award and subsequently confessed judgment for $1,000. Had there been no appeal there can be no doubt the sureties in the property bond would have been fixed for the amount: Eldred v. Bennett, supra. The judgment confessed was for a less sum, and in the absence of fraud or collusion, I see no reason why it should not bind the sureties. There is no difference in legal effect between a judgment confessed and a judgment on the verdict of a jury: Hopkins v. West, 2 Norris 109; Lamb’s Appeal, 8 Id. 407; Bredin’s Appeal, 11 Id. 241. It was said by our brother Sterrett, in Jamieson v. Capron, 14 Norris at page 20: “ 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.” This language is applicable here. The confession of a judgment by the defendant is a recognized and orderly mode of ending a pending suit. If an award of arbitrators under the compulsory arbitration Act, unappealed from, would fix the sureties, why should not a judgment confessed for a less sum after an appeal have the same effect? Its bears upon its face the evidence that it was not the result of collusion. If, however, the judgment included matters outside the [449] replevin suit it is clear the sureties would be relieved. They undertook and agreed to become liable only for the amount which Frederick might recover against Bradford in that suit. The learned judge left this branch of the case to the jury with, proper instructions. They found that the judgment embraced nothing but the replevin suit. Evidence was given without objection, explanatory of the settlement of March 27th 1878, and the learned judge could do no less than submit it to the jury. Judgment affirmed.