74 Ind. 66 | Ind. | 1881
Suit by the appellee against William O. Fee, James Small, William H. Turner and Edwin Bullard, upon •a bond, of which the following is a copy:
“We, Edwin Bullard, James Small, William O. Fee and William H. Turner, are bound unto the State of Indiana, in the sum of five thousand dollars, for the payment of which we bind ourselves jointly and severally, firmly by these presents. Sealed and dated this 6th day of December, 1865. If the above bound Edwin Bullard, who is guardian of the person and property of Martha E., John F. and Zaehariah T. Pleasant, minor heirs of John and Nancy Pleasant, deceased, then the above obligation is to be void, else to remain in full force.
50 cts. U. S. Rev. Stp
(Signed) “Edwin Bullard, [l. s.]
“James Small, [l. s.]
“Wm. O. Fee, [l. s.]
“W. H. Turner, [l. s.]
The complaint charges that said Bullard had been appointed guardian of the relator, and as such had “procured an order of the Monroe Court of Common Pleas to sell certain real estate belonging to the said relator and other minor heirs of John Pleasant, deceased, and thereupon executed his bond in the penal sum of five thousand dollars, conditioned for the faithful discharge of the duties of said trust, and to faithfully account for the proceeds of said sale;” and that, of the proceeds of the sale made under said order, the said guardian had converted three thousand dollai’s to his own use, and had failed to account therefor to the relator, who had become of lawful age. A copy of the bond was filed with and made a part of the complaint.
The appellants Fee and Small have assigned as error the
The record shows neither a return of service of a summons on said Turner, nor any appearance on his behalf. The other defendants appeared by attorney, and filed demurrers- and answers, and took other steps in the case ; and there is-an entry in the record of the tenor following: “Come again the parties, by their counsel, and this cause, being at issue,, is now submitted to the court for trial,” etc. But this entry is binding only upon those for whom there had been an actual appearance, which must be shown affirmatively in some part of the record. A judgment by default, it is well settled, can not be affirmed on appeal unless the record contains a transcript of a summons and a return of due service thereof; an express recital in the record, that there was proof of the issue and due service of process, is not sufficient; and it would be intolerable if men could be brought into the conclusive and irreversible obligation of a judgment by force of loose recitals of a' clerk, such as the one made in this case,, when in truth they were neither present nor represented, and had no notice that the action was pending.
The judgment against said Turner must therefore be reversed.
In support of the demurrer of Fee and Small to the complaint, it is claimed that the bond sued on is not an additional bond, given on application for an order to sell real estate, but is, and from its terms and conditions can be-deemed to be, only a general bond for the faithful performance of the duties of the guardianship, and therefore does not create any obligation to answer for the proceeds of the-sale of real estate.'
In the foregoing statement we have given literally so much
A bond taken or approved by a judge on the bench is taken by an officer in the discharge of the duties of his office. The bond in suit is therefore within both the letter and spirit .of this law. The defects of form and recital are apparent on the face of the instrument, taken in connection with the alleged purpose for which it was executed, and consequently ■a more particular suggestion of the defects in the complaint ‘was unnecessary. Buskirlt’s Practice, 302.
A further objection is made to the complaint by these appellants, that it does not show that they executed the bond. 'The only averment on the subject is that the guardian, Bullard, “executed his bond,” and the only thing to .show or suggest that the other defendants had joined in its execution is the fact that the names recited in the copy of the bond filed with the complaint are identical with the names of the
As against Bullard-, the complaint is unquestionably good, and if his second paragraph of answer, to which a demurrer was sustained, was good, no error was committed of which he can avail himself. He had pleaded a general denial, under which, if under any plea, he could have proved that he had “fully performed all the conditions of said bond according to the tenor and legal effect thereof.” This was all there was in his special plea to which the demurrer was sustained.