164 Ind. 131 | Ind. | 1905
Suit by appellees to follow funds averred to have been wrongfully obtained from DeXalb county by one Herman Coffinberry, as county auditor, and by him in
The complaint avers that appellee McClellan is the executrix of Charles A. O. McClellan, deceased; that Coffin-berry was auditor of DeKalb county from November 4, 1890, to November 4, 1894, and that LaEayette J. Miller, Charles A. O. McClellan and one John L. Davis, who refused to join as a plaintiff and was madei a defendant, were sureties on his official bond, which was conditioned that he should faithfully discharge his duties as such auditor, and pay over to the persons entitled all moneys that might come into his hands as such auditor; that Coffinberry did not faithfully discharge the duties of his office; that “he issued false and fraudulent county orders payable to himself, there being no consideration therefor, and thereby feloniously secured large sums of money from said county; * * * that he made fraudulent overcharges against said county on account of his salary and alleged services, ap.d fraudulently caused and issued county warrants to himself and others for large sums without consideration or basis, and combined and conspired with other county officials and persons fraudulently to draw large sums of money from the county treasury, and did draw and cause such sums to be drawn, the details of which are not known to the plaintiffs;” that after being arrested for these crimes, to wit, on January IT, 1897, Coffinberry departed this life; that DeKalb county, in a suit upon Coffinberry’s official bond, recovered a judgment against the latter’s estate for $10,000, and against Charles A. O. McClellan, LaEayette J. Miller and John L. Davis, as sureties thereon, for $7,000; that thereafter McClellan paid on said judgment $1,000, and Miller $1,200, and Davis $2,133.90, and the residue of said $7,000 judgment is unpaid, and a lien upon the plaintiffs’ real estate, and unless DeKalb county collects the residue from Coffinberry’s estate the plaintiffs will be compelled to pay
A motion to make the complaint more specific was overruled, as also was a demurrer for insufficiency of facts. The
1. The first error assigned is the overruling of appellant’s motion to- require the appellees to make their complaint more specific. If the complaint, as presented, was unsatisfactory as being indefinite and obscure, appellant had the right, to enable her to prepare her defense, to appeaj. to the court to require a more certain and definite complaint. This right, however, she could only exercise by presenting a motion specifically setting forth the particulars in which she felt aggrieved, that the court might- thereby determine whether she had just grounds of complaint. The motion she really presented was to require the plaintiffs to' aver “more definitely and specifically the failure of Coffinberry faithfully to discharge his duties as auditor of DeKalb county,” and for which judgment was recovered by the county against the plaintiffs; and by requiring the plaintiffs to file with their complaint a copy of Coffinberry’s bond.
It was not necessary to make the Bond an exhibit. The bond contains no express promise on the principal’s part to pay anything to the surety. The action is not founded upon the bond, but upon an implied promise of indemnity. "Where a surety has been compelled to pay money for his principal his right to be reimbursed is not founded upon any contract, but upon principles of equity and justice. Gieseke v. Johnson (1888), 115 Ind. 308; Spaulding v. Harvey (1891), 129 Ind. 106, 13 L. R. A. 619, 28 Am. St. 176; Davis v. Schlemmer (1898), 150 Ind. 472; Warford v. Hankins (1898), 150 Ind. 489.
The other requests contained in the motion are as general and indefinite as the averments of the complaint, and there is nothing in them to indicate to the court in what particulars appellant desired more certain information. The com
2. Was the complaint sufficient on demurrer ? Counsel argue that the complaint does not state a cause of action in favor of the executrix of McClellan’s will, because it is not averred that it is necessary for her to acquire and sell the real estate in controversy to pay debts of her decedent’s estate, and cite Matlock v. Nave (1867), 28 Ind. 35. It seems in that case the administrator was seeking to recover lands conveyed away by the administrator’s decedent, and it was held the administrator could not maintain the action without showing that such land was necessary to pay the debts of the decedent. But in the case at bar the executrix is not seeking to recover property conveyed away by her decedent. She is trying to enforce a demand in favor of her decedent against Coffinberry’s estate and a grantee to whom he had fraudulently conveyed property. Coffinberry’s estatq is insolvent, and during all the time h© was auditor and up to the time of his death he was insolvent. When there was a breach of the bond, and McClellan,' as surety, was compelled to pay money because of such breach, he had a right of action against the principal, and, after the principal’s death, against his personal representative, and if such personal representative neglected to recover property which in fact belonged to the principal, McClellan might reach the property to satisfy his claim. This right of action did not descend to the heirs but went to the personal representative,
In Strong v. Taylor School Tp. (1881), 79 Ind. 208, suit was brought to set aside alleged fraudulent conveyances made by a defaulting township trustee. The administratrix of a deceased surety on the trustee’s bond was one of the plaintiffs. A claim had been allowed against the estate of the deceased surety but the administratrix had paid nothing on the claim at the time of bringing the suit. Upon the question whether the administratrix might maintain the suit, the court said: “As the representative of the surety she.could not maintain an action against the principal for the recovery of money, unless some had been paid for him. But she was not seeking to recover money in this case; she was only seeking to make the property of the principal pay his debts, for a part of which she, as such representative, stood liable. She had an equitable right to have the property of the principal exhausted before resort was had to the estate of the surety, which she represented.”
3. It is further argued under this assignment that the averments as to the breaches of the bond are insufficient as against a demurrer; that the averments are simply conclusions of the pleader; that Ooffinberry issued fraudulent orders to himself is not an averment of any fact but a mere conclusion of the pleader. But in this we can not agree with counsel. The complaint
4. With respect to the special finding and conclusions of law appellees make the point that it is not properly a part of the record because it does not affirmatively appear that it was signed by the judge and filed as a paper in the cause. The ground for this criticism is entirely removed by the clerk’s return to a writ of certiorari which shows that the court made in writing, announced and read its special finding of facts and conclusions of law thereon in this cause, to. wit: “Which said special finding of facts and conclusions, of law are by the judge filed with the clerk of this court as a part of the records, files and papers of this canse.” After reciting that the defendant Elizabeth Ooffinberry excepted to each conclusion of law the record proceeds: “And now by order of the court * * * said special finding of facts and conclusions of law thereon and exceptions thereto are, and each of them is, made a part of the record in this
5. Did the court err in its conclusions of law ? Evidentiary matter is to be disregarded and ultimate facts only are to be considered in determining the legal conclusions to be drawn from a special finding. Parks v. Satterthwaite (1892), 132 Ind. 411; Louisville, etc., R. Co. v. Berkey (1894), 136 Ind. 181; Relender v. State, ex rel. (1898), 149 Ind. 283; Elliott, App. Proc., §753. Another familiar rule pertinent to the question is that material ultimate facts not found will, in the application of the law, bo presumed to have been found against the party upon whom rested the burden of proving them. Citizens Bank v. Bolen (1889), 121 Ind. 301; Boyer v. Robertson (1896), 144 Ind. 604, and cases cited; Elliott, App. Proc., §757.
6. What appears as the special finding of facts and conclusions of law occupies fifty-four typewritten pages of the record, and is composed almost wholly of a mass of evidentiary and extraneous matter. As a basis of their right to recover against appellant, it was essential that appellees establish that Herman Coffinberry violated the conditions of his official bond for which, as sureties thereon, they became liable to DeKalb county. The first effort to state a fact relating to this point occurs in finding number three in these words: “That during his said term of office said Coffin-berry embezzled and otherwise unlawfully and feloniously secured possession of certain public funds as hereinafter set out.” Then follows in the next four findings a detailed account of Coffinberry’s indictment for larceny, embezzlement and forgery; his arrest, and death before trial; the appointment of his administrator; the inventory; the undervaluation and sale of the personal property, composed of
In number eight it is found that on March 2, 1893, said Herman Coffinberry purchased for $750, and took title to; certain described real estate in DeKalb county, and in 1894 erected thereon a dwelling-house at a cost and of the value of $5,000, and a barn at a cost and of the value of $500, “and said real estate and improvements were paid for out of the moneys of DeKalb county embezzled and appropriated by said Coffinberry as aforesaid.” The only semblance to ultimate or inferential facts relating to Coffinberry’s default of his bond, anywhere in the finding, is to be found in the quoted parts of findings numbered three and eight. These, taken separately or collectively, fail to show an actionable breach of the bond faithfully to discharge his duties as auditor, and to pay over to the persons entitled all moneys that might come into his hands as such auditor.
In number three it is found that during his term of office Coffinberry embezzled and otherwise feloniously secured possession of certain public funds “as hereinafter set out.” Nothing as to the manner of his obtaining possession of the money is thereafter set out as a fact. The manner of the getting is promised, not given. Besides, it is only found that he got possession of the money. It is not found it was tho money of DeKalb county, nor that he converted it td hffi
1. There are at least two reasons why the judgment of the circuit court upon the complaint of the commissioners against the sureties on Coffinberry’s bond should not he regarded as an ultimate fact as to the extent and character of the official delinquencies of the officer. In the first place, appellant was not a party to the judgment; neither was her grantor husband, nor his administrator. And so far as the finding shows no claim of DeKalb county was ever allowed or filed against her grantor’s estate. As appears from the finding the litigation set out was between DeKalb county, on the one side, and McClellan, Miller and Davis, on the
The conclusions of law upon the facts found, as stated by the court, are as follows: (1) That Coffinberry did, and appellant does now, hold said real estate in trust for DeKalb county; (2) that the plaintiffs, Miller and McClellan, and the defendant Davis are subrogated to the rights of DeKalb county therein to the extent that they have paid the judgment against them as sureties for Coffinberry; (3) that said real estate should be conveyed to the plaintiffs, and held by them upon full payment of the judgment, and, upon default of the conveyances by the defendant, a commissioner should be appointed to make it. We are constrained to hold that the ultimate and inferential facts disclosed by the special finding did not warrant any of the conclusions of law drawn thereon. We are further of the opinion that the ends of justice may be better subserved by a retrial of the case.
The judgment is therefore reversed, with instructions to grant appellant a new trial. It having been suggested that appellees LaFayette J. Miller and John L. Davis have departed life since the submission of this appeal, the judgment of reversal shall bear the date of submission of the cause.