Cleiman v. Murphy

Phillips, J. When Cohen, as surety for Murphy, paid Cleiman, the holder of the note, the full amount due on the note, it, as a substantive cause of action, was absolutely extinguished and could not support an action in favor of Cleiman. The claim allowed in favor of Cleiman was for the note with interest. While Cohen, the surety on the note, was not a party to the judgment against the estate, yet after the rendition of that judgment the note was paid by him as surety, and an assignment of the judgment made to Cohen by Cleiman. The payment by Cohen as surety satisfied the judgment allowed against the estate, and the assignment by Cleiman to Cohen did not revise that judgment. The evidence in the record precludes us from finding it was a sale of the judgment. Both Cleiman and Cohen testify that Cohen paid the note as security. That payment having been made by the surety the judgment could not be a cause of action against any one. While Cohen would have a cause of action against the estate for money paid as surety, he could recover on neither the note or judgment. The suit by Cleiman for use of Bottom, based on the note and judgment in the declaration described, and on the assignments by Cleiman to Cohen, Cohen to Borders, and Borders to Bottom, sought a recovery on a cause of action which had been fully paid and satisfied and was not evidence to authorize a verdict for plaintiff. We do not deem it necessary to discuss other questions raised in argument by appellee, as the judgment must be affirmed. Judgment affirmed.