| Ind. | Jun 18, 1881

Opinion of the court by

Mr. Justice Woods.

Suit by the appellee against William O. Fee, James Small, William H. Turner and Edward Bullard, upon a bond of which the following is a copy:

*644We, 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 Margaret E., John F. and Zackariah T. Pleasant, minor heirs of John and Nancy Pleasants, deceased, then the above obligation is to be void, else to remain in full force.

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 therefor 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 dollars 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 overruling of their demurrer to the complaint, for want of facts stated sufficient to show a good cause of action against them, and the appellant Turner claims that the judgment against him is erroneous because rendered without the service of process and without any appearance by or for him.

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 in the record an entry 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,” *645etc., but this entry is binding only upon those for whom there had been 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 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 of the complaint as refers to the bond, its execution and the purpose for which it was made. We consider the averments sufficient to show that it was given as the additional bond, which is required by law in case of guardians’ sales of real estate. It must, therefore, under the provisions of section 790 of the code, be held to be a good bond for the purpose for which it was executed. That section provides that “no official bond entered into by any officer, nor any bond, recognizance, or written undertaking taken by any officer in the discharge of the duties of his office, shall be void for want of form of substance or recital or condition, nor the principal or surety be discharged, but the principal and surety shall be bound by such bond, recognizance or written undertaking to the full extent contemplated by the law requiring the same, and the sureties to the amount specified in the bond or recognizance. In all actions on a defective bond, recognizance or written undertaking, the plaintiff or relator may suggest the defect in his complaint, and recover to the same extent as if such bond, recognizance or written undertal-king were perfect in all respects.”

*646A 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. Buskirk’s Prac. 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 defendants, and the names subscribed thereto either identical or differ only in that the Christian names are not given in full, but in abbreviated form, or by the initial letters. If the sufficiency of the complaint in this respect had not been questioned until after the trial, we should perhaps be justified in holding that the defect was cured by the verdict; but the appellants having presented the question at the earliest opportunity afforded them by the rules of practice, and in the appropriate mode specifically provided by the code, they are entitled to a decision whether by the rules of pleading the complaint does state facts sufficient to constitute a cause of action against them. The rule is familiar and fundamental that a pleading must state facts, and it is not sufficient to state merely matters of evidence tending to show the facts which ought to be stated,, unless the evidence is conclusive in its nature, and even then the better rule is to aver the fact, and not the evidence of it. The copy of the bond sued on is a necessary part of the complaint, and so the complaint may be regarded as showing that Bullard gave a bond purporting to be feigned by the names thereto appearing, but this is far short of showing that those names were the names of the appellants, or that they were subscribed to the bond by the appellants or by their authority.

Identity or similarity of names in any case, can be no more than evidence. of identity of persons, and standing alone could hardly be deemed to constitute prima facie proof. The demurrer should have been sustained.

Louden & Miers, for appellant. Buskirk & Duncan, for appellee.

As against Bullard the complaint is unquestionably good, and if his second paragraph of answer, to whieh 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.

The judgment against the appellant, Bullard, is affirmed with costs, but the judgment against the appellants, Fee, Small and Turner, is reversed with costs.