43 Ind. 537 | Ind. | 1873
The facts necessary to a proper understanding of the questions involved are these :
On the 6th day of December, 1868, McCool, the appellee, held a note against John L. Boner and William Boner as principals, and Thomas J. Hudspeth as surety, which was long past due, and William Boner had been dead for more than a year. Notwithstanding these facts, he, on that day, obtained a judgment before Peter Seigel, justice of the peace, as upon the service of process, for the amount of the note and interest, less than two hundred dollars, against all the makers of the note.
Shortly after the rendition of this judgment, Washington M. Boner (sometimes in the record described as “ Washington N.” and sometimes as “Wash”) became replevin bail, according to the form of the statute, excepting that the name of the justice nowhere appears as attesting the bail. At the expiration of the stay, to wit, on the 22d day of June, 1869, an execution issued against all the judgment defendants, and against the replevin bail, in the alternative, in due form. On the 28th day of July, 1869, Hudspeth filed in the court of common pleas of Warrick county a complaint for an injunction, setting forth that William Boner was dead before the rendition of the judgment; that McCool, without the consent of the plaintiff, had given time to John L. Boner, fora consideration, until John L. had become insolvent, and alleging that the judgment was rendered against plaintiff without service of process, and praying an injunction. Upon the filing of this complaint, a temporary restraining order was granted, and at the October term, 1869, a perpetual injunction was rendered. Upon the default of the defendants, and after enjoining McCool and the justice, the decree reads, “ and that Ben. Hougland be forever barred and inhibited from collecting an execution on said judgment.”
Pending the injunction proceedings, Washington M. Boner had sufficient property to. pay the execution, but whether
Hougland failed to make the money upon the execution, and then suit was brought upon the constable’s bond to recover the same. The suit was brought before a justice, where there was a judgment for the defendants, from which an appeal was taken to the circuit court.
There were three breaches of the bond filed, but two were withdrawn. The one left simply counts upon a failure to levy the execution upon the property of Wash Boner. And under this assignment proof is made, showing that while the execution was in the hands of Hougland, Wash Boner had property sufficient to satisfy the execution. Upon this the plaintiff claimed a right to recover the whole judgment, costs, and statutory damages.
On the other hand, the defendants insisted, 1st. That the -replevin bail was void, and, therefore, the execution void. 2d. That the perpetual injunction of Hudspeth against collecting the .judgment from him, even if the injunction is not broader, released the replevin bail, he having become the surety of Hudspeth as well as the others. And, 3d. That if McCool could collect anything, it would be. only nominal damages, as the constable could not levy pending the injunction suit, and as Wash Boner was not shown to have any property after the term of the court at which the case was determined.
To sustain this view, the defendants put in evidence the record in the case of Hudspeth v. McCool, and proved the death of William Boner and the insolvency of John L. before the judgment; also, that Hudspeth is a man worth twenty-five thousand dollars or more, and that Wash Boner replevied the judgment for Boner and Hudspeth.
But the court found for the plaintiff, and assessed the damages at the full amount of execution, with ten per cent, damages thereon.
The defendants moved the court for a new trial, for the reasons, i.st, 2d, and 5th. The damages are excessive.
The first and third assignménts of errors are merely formal; the second, the overruling of the motion for anew' trial, is relied upon solely.
Five questions arise upon the record here: 1st. Is the replevin bail, upon which the alleged liability of Wash. M. Boner upon the judgment against William Boner, John L. Boner, and Thomas J. Hudspethis based, void, for want of the attestation of the justice of the entry of bail, in conformity with the terms of the statute ? 2d. Admitting the entry of replevin bail to have been sufficient in the first instance, did not the fact that the judgment was void, for want of service of process or appearance of Hudspeth, as to him, alleged so by Hudspeth, and the allegation admitted by McCool by his default, also render the undertaking of the replevin bail void? 3d. Was not the replevin bail discharged by the injunction ? 4th. Was not appellant Hougland, the constable, enjoined from the collection of the judgment upon execution? And, 5th. If the appellee was entitled to recover anything, did not the evidence confine his recovery to nominal damages.
Before proceeding to consider the questions stated, we will dispose of a question raised by counsel for appellee, and which is stated by 'counsel as follows :
“The first proposition is, that ‘the entry or undertaking (of replevin bail), not being in substantial conformity with the statute, is void.’ We submit that the question is not properly before the court, and ought not to be considered, because the proper objection was not made in the court below to the admission of the entry in evidence. The record shows that the justice’s judgment, and the entry of replevin bail thereon, were read in evidence, as set out in the.record, without objection. After showing such admis
It seems to us that the learned counsel for appellee has misconceived the point relied upon by counsel for appellants. The appellants do not insist that the court erred in admitting in evidence the transcript of the judgment and the entry of replevin bail, but that, conceding that the evidence is properly in the record, the court erred in overruling the motion for a new trial, because such evidence shows that the entry of replevin bail was void for the want of the attestation of the justice of the peace. The point relied upon by counsel for appellant is, that there was such a failure of proof as required the granting of a new trial. We think that question is presented by the third reason for a new trial and the assignment of error, that the court erred in overruling the
The statute, 2 G. & H. 602, sec. 84, provides, that the undertaking shall be substantially in the following form :
“ I, A--B-, hereby acknowledge myself replevin bail for the stay of execution, on the above judgment for-days from the rendition thereof. Witness my hand, this-day of-, 18-.
“A-B-.
“Test: E-F-, J. P.”
The following argument is made, on this point, by counsel for appellants :
“ The undertaking in the case under consideration lacks the attestation of the justice. The question then is, is this attestation form or substance ? We answer, substance. The undertaking by the same section becomes a judgment confessed, and execution issues upon it jointly with the judgment of defendants. This being true, the attestation of the justice is equivalent to his signature to his judgments, required by section 58 of the same act. There it is simply
“ In the one case, this court holds'that the absence of the signature renders it void; and certainly, a fortiori, if the signature is wanting in the other, it is equally void.
“ The substantial points of the entry of bail are these: 1st. The acknowledgment of liability by the replevin bail. 2d. His signature, which serves as a binding obligation on his part. 3d. The attestation of the undertaking by the justice, that it may have the force of his official sanction as a record, ‘ a judgment confessed,’ in the language of the statute.
“ We are aware that it will be assumed that this provision is directory, the omission formal, and the objection technical.
“ But this objection is fully met in Galbraith v. Sidener, 28 Ind. 142, wherein the effect of the failure to sign the record by the judge of the court of common pleas is discussed, and Ringle v. Weston is commented on and approved. But the case of Cox v. Crippen, 13 Mich. 502, is a case precisely in point, the statute being almost identical with ours. The case is ably argued by counsel, and briefs of points and authorities printed in the report of the case, and the question presented here is discussed by Judge Cooley, with his acknowledged ability, and1 he reaches the conclusion, that the attestation,is not merely formal, but is substantial; that the statute is not directory, merely, but peremptory; and that therefore the attestation and certificate are indispensable to the validity of the undertaking, and that their omission is fatal and the undertaking void.
“ Of course, if the undertaking was void, the execution issued was void as to the replevin bail, and the breaches assigned upon the constable’s bond are not well assigned; or, more accurately speaking, they are not sustained by the evidence.”
We have examined the case of Cox v. Crippen, supra, and find that it was under a. statute “ almost identical with ours.” The case is directly in point. The court holds that the requirement of the statute, which makes it the duty of the justice to attest the replevin bail, is not directory merely, but peremptory and mandatory. The court say:
“ It will be seen, on examination of the statute, that when this undertaking is entered upon the docket in due form, it is somewhat in the nature of a confession of judgment, and has the force and effect of a judgment without any other form or ceremony whatever. There is nothing in the statute which requires any intervention on the part of the justice in taking the stay, or which demands that it be in his presence, or be brought to his knowledge, unless the section quoted makes it necessary for him to attest the signature. He is not required to approve or accept it, if it is satisfactory to the judgment creditor; and as the docket of a justice is a public record, at all times open for proper entries, the parties to the judgment might enter the security in the absence, and without the knowledge, of the justice, as properly as in his presence, if his intervention is not required. No proof that the justice was actually present when this security was entered into can have any bearing, since, if he was required by law to attest it, his presence could not be regarded as a legal equivalent for attestation, and if not required to do so, it was wholly immaterial whether he was present or not.
“The consequences of a conclusion that the security need not be witnessed are so serious that we can not avoid
“ A statute under which such consequences could follow, or which should permit judgment to be taken without the intervention of any judicial officer, would be an anomaly. Judgments have never been allowed to be taken against parties upon their own confessions, or in any manner, except in pursuance of forms designed to afford complete protection against frauds or mistakes.”
The reasoning of the court in the above case is sound and cogent. It seems to us that the undertaking of the replevin bail in the case in judgment was void for the want of the attestation of the justice. Inasmuch as the only breach of the bond relied upon was for the failure of the constable to levy upon the property of the replevin bail, it necessarily results, that there can be no recovery in this case on the evidence in the record. It is, therefore, unnecessary for us to-examine the other questions discussed by counsel. ■
The judgment is reversed, with costs; and the cause is remanded, with directions to the court below to grant a new trial, and for further proceedings in accordance with this opinion.
I regret that I can not assent to the opinion agreed upon by the majority of the court in this
I am confirmed in my opinion that the formal testing of the entry by the justice is not of the substance of the transaction, from the fact that no such formality is required in the entry of replevin bail in the higher courts of record in this State. By reference to sec. 421, p. 234, 2 G. & H., it will