The questions involved on this appeal are: (1) As to whether or not the Southern Railway Company was entitled to an order staying execution against it. (2) As to whether or not the United States Fidelity and Guaranty Co., surety upon the supersedeas bond of said Southern Railway Company, was entitled to an order staying issuance of execution against it. (3) As to whether or not the National Surety Company, surety upon the supersedeas bond of Seaboard Air Line Railway Company, was entitled to a stay of execution against it. All the questions must be answered in the negative.
O. S., 659, is as follows: “In civil cases, at the first term of the Superior Court after a certificate of the determination of an appeal is received, if the judgment is affirmed the court below shall direct the execution thereof to proceed, and if the judgment is modified, shall direct its modification and performance. If a new trial is ordered the cause stands in its regular order on the docket for trial at such first term after the receipt of the certificate from the Supreme Court.”
In the judgment entered by Judge Small on 18 December, 1931, in conformity with the opinion and judgment of the Supreme Court, the Court declared: “Now, therefore, in conformity with the opinion and judgment of the Supreme Court of North Carolina, it is ordered and adjudged that the judgment heretofore entered herein at the Second November Term, 1929, of this court is affirmed, and that execution issue thereon.” And then, after entering judgment against the sureties in accordance with law, the court concludes the judgment, just before its date, with the language “let execution proceed hereon.”
In view of the statute, under the facts and circumstances of this case, this was the only judgment the court below could have entered, and having entered it on 18 December, 1931, the court below, in accordance with the statute, was without power or authority to enter the order which it undertook to enter on 19 December, 1931, staying execution against the Southern Eailway Company and its surety, the United States Fidelity and Guaranty Company.
It goes without saying that the National Surety Company is bound by the judgment against it and should pay its proportionate part of the judgment and fulfil the obligation of its bond. C. S., 650, Murray v. Bass, 184 N. C., 318. The judgment signed by Small, J., in conformity with the opinion of the Supreme Court was against the Southern and *140Seaboard Air Line Railway Companies, and their sureties. All are bound to plaintiff and the joint defendants, tort-feasors, must contribute.
C. S., 618 provides that when payment is made by one of several joint tort-feasors, then transfer is to be made to a trustee for payor, etc.
We can see no reason for holding up the collection of plaintiff’s judgment while the defendants, joint tort-feasors, litigate between themselves. By paying the whole judgment, the Southern Railway Company, under C. S., 618, can lose no right it has against the Seaboard Air Line Railway Company, or its surety, the National Surety Company. The surety, the National Surety Company, is a party to the judgment and bound thereby and • cannot now raise the question of its liability to the defendant Southern Railway Company, when it pays said judgment in full and requires the transfer of said judgment of plaintiff to a trustee by virtue of the provision of C. S., 618. The judgment below is
Reversed.
Stacy, C. J., took no part in the consideration or decision of- this case.