majority"> Ashe, J.,

after stating the case. This is certainly a case of the first impression, and it is only necessary to make a. statement of the proceeding had in the court below to show its extrajudicial character. The plaintiff brings an action to recover a sum of money which he had paid as surety for-the defendant (an action of assumpsit according to the former-practice) and obtains a judgment for the specific sum sued for, from which judgment there is an appeal to this court: where it is held there was no error in the judgment below;: and upon the receipt of the certificate of the clerk of this-court, the court below, upon notice served on the attorney of the defendant, proceeds at chambers in another county in accordance, as it is said, with the decision of the supreme court at January term, 1879, to adjudge that the plaintiff.' he subrogated to the rights of the plaintiff in a judgment of.' the supreme court rendered at June term, 1872, and also to a judgment in the superior court of Northampton county;, that the plaintiff is entitled to any benefit of any lien which, the said plaintiff acquired by means-of such judgments to-the extent of $11,448.30, and that the defendant is not entitled to the benefit of any homestead or personal property exemption. It seems to be a summary mode adopted to get at the homestead and personal property exemption of. the defendant, by a practice unwarranted by any authority of.' law known to this court. Under the former practice, a. surety who paid money for his principal could be substituted to all the rights, liens and securities which his pranch *338 pal held ; but it could only be done by a regular bill in equity brought for that purpose. And since, by section one, article .four, of the constitution “ the distinction between actions at law and suits in equity and the forms of such actions and suits are abolished, and there is but one form of action for .the enforcement or protection of private rights, •or the redress of private wrongs, which -is denominated a ■civil action,” the enforcement of an equitable right, as that ■of subrogation, can only be maintained by a civil action. And by the code of civil procedure (§ 70) civil actions in the superior courts of the state shall be commenced by a .■summons. But in our case there was no summons, no complaint, no proof, no allegation, no pleading, nothing upon which to found the judgment rendered.

We cannot understand what is meant by the court below, ■in professing to reform the judgment in that court, in ac■cordance with the opinion of this court. In that opinion üthere was not the remotest intimation made that the plaintiff was entitled to be subrogated to the rights of the plaintiff in any action whatever, or that he was entitled to any lien on the property of the defendant, or that the defendant had no .right .to his homestead or personal property exemption. There is nothing in the opinion of this court from which even by the most liberal construction such inferences could be drawn. When this court announced by its decision that there was no error in the judgment of the ■court below, that court had no right or power to modify ■that judgment in any respect. It could only be done by direct proceeding alleging fraud, mistake, imposition, &e.

- The judgment from which this appeal is taken is not according to the course and practice of the courts. It was irregular, and should have been set aside upon the exceptions taken by defendant’s counsel. There is error. Let this be ■certified to the superior court of Northampton county.

Error. Reversed.

Citation profile

How this case has been treated — in progress