commenting that in the absence of fraud or collusion, "a consent judgment against the principal may be attacked by the surety if the surety did not participate in the suit against the principal in some cases, but not in cases where the surety is a judgment surety"
How later courts described this case
- commenting that in the absence of fraud or collusion, "a consent judgment against the principal may be attacked by the surety if the surety did not participate in the suit against the principal in some cases, but not in cases where the surety is a judgment surety"
- surety in foreign attachment action may raise issue of unconstitutionality of foreign attachment law not raised by principal
Written by the judges who cited it.
The opinion
SPAETH, Judge,
concurring:
While I agree with the result reached by the majority, I feel obliged to point out just what, in my view, the majority is, and is not, holding in this case.
I think it may be said that the majority opinion should not be read as affecting established principles of the law of suretyship. Apparently a consent judgment against the principal may be attacked by the surety if the surety did not participate in the suit against the principal in some cases, but not in cases where the surety is a judgment surety. See Pennsylvania Turnpike Commission v. United States Fidelity & Guaranty Co., 412 Pa. 222 , 194 A.2d 423 (1963); Share v. Hunt, 9 Serg. & Rawl. 407 (1823). A judgment surety is bound even by a consent judgment against the principal *87 unless there is fraud or collusion. See Pennsylvania Turnpike Commission v. United States Fidelity & Guaranty Co., supra. This is so because the surety has promised to pay the judgment and is liable on its express promise even if the judgment is not the product of hostile litigation. See generally 51 A.L.R. 1489 (1927). Defenses affecting the amount of the judgment that arise after the judgment may be pleaded by the surety as a set off to the amount claimed in the creditor’s action on the bond. Clauss v. Ainey, 279 Pa. 534 , 124 A. 183 (1924). Thus, as a matter of the law of suretyship, if in this case Travelers is deemed to be a judgment surety, it would apparently be bound on its promise even though the underlying judgment was obtained by consent. Evidently Travelers recognizes this, for it is not attacking the judgment but the legality of the bond.
I think it also may be said that the majority’s opinion should not be read as establishing a rule under which a violation of McFadden’s constitutional rights somehow also amounted to a violation of Traveler’s rights. Here there was no violation of Traveler’s constitutional rights.
These considerations lead me to read the majority opinion as holding only that the illegality of the attachment vitiated the surety bond. My own way of reaching this conclusion is as follows: Rule 1272 of the Pennsylvania Rules of Civil Procedure provides:
(a) An attachment is not dissolved by service of the writ or complaint on the defendant nor by his appearance.
(b) An attachment is not dissolved by the death or dissolution of a defendant or garnishee.
(c) An attachment is dissolved when any person or party
(1) files with the prothonotary a bond, with security approved by the prothonotary, in double the amount of the plaintiff’s claim or in such lesser amount as the court may direct, naming the Commonwealth of Pennsylvania as obligee, conditioned to pay the plaintiff, if final judgment is entered in his favor, the amount to which he is found entitled, including interest and costs, or
*88 (2) deposits with the prothonotary, or with the sheriff for the prothonotary, to be held by him upon the same condition as the bond, security in the form of legal tender of the United States in an amount equal to the plaintiff’s claim, including probable interest and costs.
Thus, the rule compelled McFadden to have Travelers post the bond; that was the only way the attachment could be dissolved. It follows that Travelers’ bond was a direct result of the attachment, which is to say, of an unconstitutional procedure. Had Travelers intervened in the action against McFadden and attempted to have the bond dissolved, the bond should have been dissolved. As it was, Travelers did plead the defense of the invalidity of the bond at the first opportunity. Thus, by saying that the bond was of no effect the majority cannot be saying that any past payments made to creditors by sureties on foreign attachment bonds may be collaterally attacked, but only that the illegality of the attachment is a defense to be raised in the action to collect on the bond, and that if not so raised, the defense will be waived.
For these reasons, I concur in the order affirming the judgment of the lower court.
PRICE, J., joins in this concurring opinion.