(dissenting).
The District Court in awarding a money judgment against appellant, and the majority in affirming that judgment here, have proceeded, I think, upon completely erroneous assumptions, as to both the law and the facts. The District Judge and the majority have dealt with this case as though appellee had gotten a judgment against the administrator in the court of his appointment requiring him as such, to pay over moneys of the estate. If this were so, I should agree that the surety was absolutely bound by the judgment and could not defend against it.
But, this is not so. There is no claim that appellee obtained a money judgment against the administrator in the probate court, the court of his appointment and the court in which the surety was given. Quite the contrary is true. For in that court, the judgment was against the claimant. All that is claimed is a pro confesso or default judgment in chancery for the specific performance of the contract sued on against the estate of the administrator for the money value thereof. While it is settled law: that a surety is concluded by a judgment of the probate court establishing a devastavit against the representative; and that a judgment of final settlement in the probate court- is conclusive as to the existence and amount of assets. Stewart v. Morrison, 81 Tex. 396, 17 S.W. 15, 26 Am.St.Rep. 821; 24 C.J. Section 2589, page 1080; it is equally well settled that a surety is not bound by a judgment rendered against a representative after his authority as such is terminated or after the surety has been discharged from liability. Id., same page, 1081. It is settled law too that “the recovery of a judgment against a personal representative on a debt of his testator or intestate is not conclusive upon the representative’s sureties that there were sufficient assets of the estate to pay the liability thus ascertained.” Banks v. Speers, 97 Ala. 560, 11 So. 841, 843. The undisputed facts alleged .and shown of record are: not that the surety stands in the position of one against whom or whose principal the probate court has rendered a judgment on the final settlement or a judgment or decree in favor of a creditor, but that the probate court has rendered a judgment discharging the administrator on the very claim now in suit and in addition has finally settled the estate and discharged both the administrator and the surety. Matters standing thus, when the holder of the chancery court judgment brought this suit on it, against the surety, the surety was entitled to defend against the judgment, Banks v. Speers, supra; Lake County v. Massachusetts Bonding & Insurance Co., 5 Cir., 75 F.2d 6; Id., 5 Cir., 84 F.2d 115. It particularly was entitled to defend against it on the ground that it had been discharged from all liability by the failure of the claimant to appeal from the order of the probate court disapproving his claim and from the order finally discharging the administrator, and it is equally clear that, entitled to defend against the suit claimant had brought against it, it had the right to obtain the same relief by the declaratory judgment procedure it followed here.
The District Judge reached the wrong result by ignoring the legal principles *690which control it; (1) that a surety is not conclusively bound' by and may defend against a judgment of a court other than the probate court, and (2) that the surety not having been made a party to the chancery suit, it was not and could not be cut off, by a default judgment taken against his principal, from its defenses to the suit that the judgment of the probate court denying his principal’s liability and finally discharging both him and his principal, had not been appealed from and were being collaterally attacked. The court fell into this error by applying to the surety the rule which could have been properly applied to the principal, that the defense was a collateral attack upon the subsequent judgment of the chancery court. The shoe here was on the other foot. The surety had a right to defend against the judgment to which he was not a party and to set up against it the final judgments of the probate court which had not been set aside or in any manner overthrown. By the judgment, here affirmed, a surety is deprived without his day in court, of the protection of the judgments of the court of his principal’s appointment, both that disapproving plaintiff’s claim and that fully and finally closing the estate and discharging the surety on his bond.
I respectfully dissent.