| Ind. | May 15, 1862
The State, on the relation of the Board of Commissioners of Decatur county, sued James M. and Mary J. Freeman, the heirs of William W. Freeman, John, Charles, and Westley Throp, the heirs of Thomas Throp, deceased, and James Freeman, upon three bonds, each for the payment of 133 dollars and 33 cents, and executed on the 2d of May, 1841, by the said James Freeman, Thomas Throp, and William W. Freeman, to the State, for money loaned to them by the agent of that part of the surplus revenue fund allotted to said county. John, Charles and. Westley Throp answered: 1. By a general denial. 2. That Thomas Throp died in March, 1853, and on the 7th of May, then next following, letters testamentary upon the will of said decedent were duly issued to James Throp, and notice thereof duly given by him, as required by law; that said executor thereupon proceeded to settle the decedent’s estate, and the same was afterwards, on the 16th of April, 1856, finally settled in the Decatur Common Pleas, and the executor discharged; that the bonds in suit were never filed as claims against said estate; nor was any suit ever instituted on them, or either of them, against Thomas Throp, in his lifetime, or his executors, since his death, or against these defendants, or either of them. Wherefore they say that this suit is barred by the statute of limitations, &c. Process, as to James Freeman, was returned not found. Plaintiff demurred to the second paragraph of the answer of John, Charles and Westley Throp; but her demurrer was overruled, and she excepted.
Jam.es M. and Mary J. Freeman being minors, appeared by their guardian ad litem, and answered: 1. By a general traverse. 2. Payment. 3. That William W. Freeman was surety,
The evidence given on the trial is set out in the record. “ It proves that^the interest on the bonds was duly paid until the 2d of May, 1856, since that date the interest thereon remains unpaid; that William W. Freeman died in the year 1849, intestate; that no regular administration was ever had on his estate, and that the defendants, James M. and Mary J. Freeman, as heirs-at-law of said decedent, inherited from him real estate worth 4,000 dollars; that Thomas Throp died in 1853; that his estate was settled, and distribution thereof made amongst his heirs, 'now defendants, in April, 1856; that the estate thus distributed, was woi’th 10,000 dollars, and that, in addition, the defendants, the heirs of said Thomas, inherited from him real estate worth at least 10,000 dollars; that James Freeman, in the year 1850, took into his possession and control the personal estate of said William W. Freeman, and thereby became administrator de son tort on that estate, and in that year was appointed guardian of the said defendants, James M. and Mary J. Freeman, and acted as such guardian until the year 1857; that in said year, 1850, James Freeman, then being such administrator de son tort, made a report to the Decatur Common Pleas, showing that all the debts of the deceased, William W. Freeman, had been fully paid, and also showing the amount of personal property belonging to the estate of said deceased, which had come into his hands. It
The errors are thus assigned: 1. The finding of the Court is unsustained by the evidence. 2. It was error to adjudge the heirs of William W. Freeman liable for the entire amount of the bonds, and all interest due thereon. 3. The plaintiff having neglected to pursue the law in relation to such bonds, is not entitled to recover.
BTone of these errors seem to be available. The evidence is upon the record, and, in our judgment, fully sustains the finding of the Court. It is, however, insisted, that the demurrer to the second paragraph of the answer of the Throps should have been sustained. We think otherwise. See 2 R. S. p. 289, sec. 178; also Yoast v. Willis, 9 Ind. 549. But suppose the ruling upon the demurrer to have been incorrect, the appellants can not avail themselves of the error, because it was the plaintiff below, and not they, that demurred; nor does it appear that they excepted, in any form, to the action of the Court in overruling the demurrer. As the case stands in the record, the appellants were the only parties before the Court liable upon the bonds in suit; and hence, a separate judgment against them, for the several amounts therein specified, can not be held objectionable. 2 E. S. p. 121, see. 368.
The judgment is affirmed, with 1 per cent, damages and costs.