On January 28, 1908, John R. Osborn, defendant in error, sued Geo. A. Harrison, J. W. Bolen, and John *Page 104 P. Crawford, plaintiffs in error, in the county court of Pontotoc county to recover a sum certain on a written obligation. His petition substantially states: That on September 28, 1907, said Crawford and Bolen as principals, and said Harrison as surety, made, executed, and delivered to one C. P. Cooper their certain undertaking as follows:
"We undertake and are bound unto C. P. Cooper in the sum of $750.00 conditioned that we will deliver to him unincumbered possession of the lands this day sold to him by J. W. Bolen and J. P. Crawford, it being the surplus allotment of Samuel C. Melville on the 1st day of January, 1908, provided however, that U. G. Winn shall have the full right to use the branding pen and the dip vats on said place for the years 1908 and 1909. And it is further agreed that if the conditions of this bond are complied with it shall be null and void, otherwise to remain in full force and effect. This the 28th day of Sept. 1907. Crawford Bolen. Geo. A. Harrison."
That the same was given as a part of the consideration of the sale of the lands therein described; the sum thereby secured being intended as liquidated damages to be paid said Cooper or his assigns upon the breach thereof. That on November 9, 1907, said Cooper sold said lands to plaintiff and as part consideration therefor assigned to him, with the knowledge and consent of defendants, said written obligation, who thereby became entitled to the possession of said lands on January 1, 1908. That defendants breached said bond, in that they failed to deliver to him possession of said lands on said date after demand therefor made by him — and prays judgment for said amount and costs. After general demurrer thereto filed and overruled, defendants answered, whereupon plaintiff demurred to said answer, which was sustained, and, defendants electing to stand thereon, judgment was rendered and entered March 26, 1908, in favor of plaintiff and against defendants for $750 and costs. On March 28, 1908, defendants filed motion for a new trial. At the next term of the court, on May 2, 1908, by agreement of counsel, said judgment was set aside, pending the hearing of motion for a new trial, and the motion continued until the next term of the court, but on May 12th was taken up without objection *Page 105 and overruled and judgment again entered as stated. To review said judgment defendants bring the case here by case-made.
It is contended by defendant in error that the judgment of March 26, 1908, became final at the expiration of the March term, and that the court was without jurisdiction to set the same aside during the next term as it did, even by consent of counsel, having lost jurisdiction over the case at the expiration of the term at which said judgment was rendered. The effect of this contention, if successfully maintained, would be a dismissal of this proceeding for the reason that the case-made was not made and served within the statutory time after the rendition of that judgment. But the point is not well taken. The judgment rendered and entered May 12, 1908, is the final judgment.
This was the contention in National Home, etc., v.Overholser,
"The circuit court acted upon its own motion, and apparently upon the impression that the court of common pleas on March 25, 1899, was without jurisdiction to set aside the judgment which it had rendered on the 25th of November, 1898, although the parties consented thereto. That view of the subject is erroneous. It was not an agreement to confer upon the court of common pleas jurisdiction of a subject-matter. That court is vested by statute with authority to set aside its judgments *Page 106 after the terms at which they are rendered for specified reasons, and, when counsel consented that that jurisdiction should be exercised in this case, they did no more than to waive the allegation of a statutory ground for such action. That judgment having been set aside, the judgment of March 27, 1899, upon the overruling of the motion for a new trial, is the only final judgment of the court of common pleas in the case, and, the petition in error having been filed within four months of the rendition of that judgment, it was the duty of the circuit court to consider it"
— and reversed the order of the circuit court dismissing the petition in error and remanded the cause for further proceedings. Hewetson et al. v. City of Chicago,
Defendants contend that the court erred in overruling their demurrer to the petition, because, they say, the bond was not assignable, and hence plaintiff was without legal capacity to sue. Not so. The bond, being made, executed, delivered, and assigned in Indian Territory prior to the admission of the state into the Union, was made assignable by law then in force in that jurisdiction. Mansf. Dig., sec. 473 (Ind. T. Ann. St. 1899, sec. 455) reads:
"All bonds, bills, notes, agreements and contracts in writing for the payment of money or property shall be assignable." (2 Am. Eng. Encyc. of Law, 1041, citing Jordan v. Thornton,
As it is not pointed out to us wherein defendants' answer states facts sufficient to constitute a defense to the action, and the same is not to us apparent after careful examination, and no issue of law arising on demurrer is attempted here to be presented, we cannot say that the court erred in sustaining a general demurrer to said answer.
It is next contended:
"That said court erred in treating the amount of damages set out in the bond in suit as liquidated damages and in rendering judgment for the full amount thereof without proof as to the actual damages, if any, sustained by the plaintiff on account of the default alleged in the petition."
Not so, for the reason that upon a fair construction of the face of the bond, and in view of the decision of this court in *Page 107 Gann v. Ball,
Finding no error in the record, the judgment of the lower court is affirmed.
HAYES, KANE, and DUNN, JJ., concur; WILLIAMS, J., not participating.