34 Ind. App. 441 | Ind. Ct. App. | 1905
This was an action by the appellee ’ Emma L. Neighbors against the appellants and Benjamin W. Chambers and Elmer L. Williams to recover on a prome issory note executed by appellants and Benjamin W. Chambers, payable to Elmer L. Williams, who before maturity indorsed said note to appellee Emma L. Neighbors, trustee; and said note was secured by an indemnifying mortgage upon certain real estate in favor of Benjamin W. Chambers, as surety. The appellants, Allie Davis and Fremont Davis, filed a joint answer, and each also filed a separate answer.
The first paragraph of each answer is a general denial. The second paragraph alleges that the property mortgaged was owned by appellants, Allie Davis and Eremont Davis, by entireties; that no' part of the money for which the note was given was received by Allie Davis, and no part of the same was applied to the joint use and benefit of Allie Davis and Eremont Davis, and all of said money went to the exclusive use and benefit of said Eremont Davis, and that said Allie Davis was surety on said note.
The first paragraph of each of appellees’ replies to said answers is a general denial. The second paragraph of each of said replies alleges matter in estoppel. Said matter in estoppel in each of the replies is, substantially, that appellants were estopped from proving that Allie Davis was
The appellee Benjamin W. Chambers filed a cross-complaint against appellants, Eremont Davis and Allie Davis, alleging suretyship. The appellants answered by a general denial. The court found for appellee Emma L. Neighbors on her complaint, and for Benjamin W. Chambers on his cross-complaint, that appellants were principals on said note given to Elmer L. Williams, and that Benjamin W. Chambers executed said note as surety for them, and that appellants, in order to indemnify and hold said Chambers from the payment of the note, executed a mortgage on the real estate so held by them by entirety; that, after the execution of said note, Elmer L. Williams sold, assigned and transferred the same to appellee. Judgment was accordingly entered against appellants as joint principals, and against Benjamin W. Chambers as surety, and against Elmer L. Williams, as indorser, for $356.40.
The questions ’presented in this appeal depend for their solution upon the consideration of the evidence. Counsel for appellee insist that the evidence is not in the record. It is pointed out that it does not appear that the bill of exceptions containing the evidence was filed with the clerk after having been signed by the judge. The record shows that thé longhand transcript of the evidence was filed in the office of the clerk ón the 3d day of December, 1903; that the bill of exceptions attached to said transcript is the original bill of exceptions filed in said office on the-day of December, 1903. Neither the record nor the certificate shows the bill was filed with the clerk after having been signed by the judge December 12, 1903. What purports to be the certificate of the clerk to the transcript shows no time of filing the bill of exceptions. The certificate leaves
After the cause had been submitted upon appeal, and been briefed by counsel on both sides, appellants procured a nunc pro tunc entry to be made in the court below,' and the same is in the record by certiorari, showing that the said bill of exceptions was filed in the office of the clerk of said court on the 12th day of December, 1903, after the same had been approved and signed by the trial judge. Said’ entry was based alone upon the facts that the bill of exceptions was indorsed as follows: “Eiled in open court on the 12th day of December, 1903, William P. Barrett, clerk”— supported by the affidavit of William P. Barrett, which said that when the bill of exceptions was filed on the 12th day of December, 1903, it had been approved and signed by the judge who presided in said cause; that when the bill was so filed he omitted the indorsement hereinbefore set out; that no independent entry of said filing was made; that the date of his certificate to the transcript was inadvertently omitted; and that the date, December 12, 1903, should have been written therein.
Holding that the evidence is properly in the record, it remains to consider reasons set out in the motion for a new trial. One of these is that the decision of the court is not sustained by sufficient evidence and is contrary to law.
As the statute puts a married woman under disability, there can be no recovery upon a suretyship undertaking except where the facts were such that the person who accepted was reasonably justified in supposing, and did suppose, that she was not only principal in name, but also in fact. In all ordinary circumstances, at least, there must be some degree of active diligence upon the part of the lender to ascertain the purpose for which a woman whom he knows to be married is borrowing money. The evidence
The loan had been negotiated in the case at bar with the husband, aud tbe surety desired an affidavit that the loan was a joint one and the wife was a principal. It was made by the wife ai the instance of the husband. The wife was not -present when the affidavit was delivered, and denied that she knew its contents, or when the loan was consummated. It is not necessary that the party loaning the money should have been a party to the violation of the statute, but the law can not be violated by the device of an affidavit.
It is also claimed that the court erred in the admission of certain evidence. The conclusion reached renders if unnecessary to consider this reason for a new trial.
Judgment reversed, with instructions to sustain appellants’ motion for a new trial.