162 Ind. 74 | Ind. | 1904
Action by appellant against appellees to quiet her title to lots numbered four and five in Archer’s addition to the city of Et. Wayne. The complaint was in the common form. John W. "White, one of the appellees, disclaimed all interest in. the lots. Edward White, the other appellee, filed an answer in denial, and, by a cross-complaint, asserted a mortgage lien upon the lots described in the complaint, and demanded a foreclosure of the same. The appellant filed a special answer to the cross-complaint, together with a general denial. Reply in denial. A trial by the court resulted in a finding in favor of the plaintiff below against John W. "White, but against her upon the cross-complaint of Edward "White. Motion by appellant for a new trial because of error in the assessment of the amount of the recovery, the insufficiency of the evidence to sustain the finding, and for the reason that the finding was contrary to law. Motion for a new trial overruled, and judgment on finding.
Error is assigned upon the decision of the court overruling the motion for a new trial.
The questions presented on this appeal arise upon the evidence, and counsel for appellees earnestly contend that the evidence is not in the record. Their objections are that the bill of exceptions is not properly certified by the judge who tried the cause, that it appears that the bill was filed in the clerk’s office before it was signed by the judge, and that it does not show that it contains all the evidence given in the cause.
The form of certificate to the bill of exceptions adopted in'this case can not be commended. It consists largely of recitals which are superfluous and useless. It is divided into two parts. The essential facts to be stated in the brief and simple certificate required of .the trial judge may be discovered by diligent search among the unnecessary matters with which the certificate is encumbered.
A long statement by a person who took down the evi
The first memorandum signed by tbe judge comes next after this superfluous paper, and states that on April 19, 1902, the bill of exceptions was presented to the judge. This memorandum is followed by a further statement which, stripped of its verbiage, shows these facts: That the person who signs the bill is the judge before whom the cause was tried; that the bill of exceptions contains all the- evidence given in the cause; that it was presented to the judge March —, 1902; and that it was signed by him. The additional statement is made in this certificate that the bill, after being signed by the judge, “was filed with the clerk of said trial court.” The certificate is dated April 19, 1902, and the signature of the judge of the superior court of Allen county is attached. This certificate must be held sufficient. The two statements signed by the judge bear the same date, and it is to be.presumed that they were signed on the same day. ' They may bo treated as constituting a single certificate.
The recital in the certificate that the bill was “after-wards filed with the clerk” can not be interpreted to mean that the filing preceded the signing of the bill. The statute seems to make it the duty of the judge after signing the bill to cause it to be filed. The provision is as follows : “When the record does not otherwise show the decision or grounds of objection -thereto, the party objecting must, within such time as may be allowed, present to the judge a proper bill of exceptions, which, if truc, he shall promptly sign and cause it to be filed in the cause; if not true, the judge shall correct, sign, and cause it to be filed without delay.” §641 Burns 1901. The statement in the certificate must be understood to indicate that, after signing the bill, tbe judge caused it to be filed as provided in §641, supra.
It is true that no entry on the record shows the filing of the bill of exceptions in this cause, but the certificate of the clerk to the transcript states that the “certificate attached to the said transcript of the evidence by John II. Aiken, judge of the superior court of Allen county, Indiana, is the certificate of the judge who tried said cause, and that said transcript and bill of exceptions were after-wards filed in my office on the 19th day of April, 1902.” Martin v. State, supra. We think it is sufficiently shown by the clerk’s certificate that the bill of exceptions was first signed by the trial judge, and afterwards filed in the cause.
We proceed now to an examination of the error assigned. The material allegations of the cross-complaint of the appellee Edward White were as follows: That on September 17, 1894, the said Edward White together with one James B. White became sureties for one John Kalbus on a bond that day given by Kalbus to the State of Indiana, in the,
The appellant Mrs. Howe filed her answer to the cross-complaint in two paragraphs, the first being a general denial. The second admitted the execution of the mortgage by Kalbus to Edward White and James B. White, and averred that on February 27, 1896, the said sureties ap
The controversy is upon the issues formed by the cross-complaint of Edward White, the second paragraph of the answer of the appellant thereto, and the reply. The proof showed that on March 20, 1893, John Kalbus was appointed by the Allen Circuit Court the guardian of Charles Kalbus, a person of unsound mind, and that he gave bond with August F. Schuch and others as his sureties; on September 11, 1894, he filed an additional bond in a penalty
The court thereupon made the following order and entry of September 10, 1898: "In re Guardianship of Charles Kalbus. Comes now the Fidelity,' Surely & Casualty Company of Maryland, John W. White, administrator of James B. White, deceased, and Edward White, August F. Schuch, and Alfred Daugherty, and pay into court the sum of $506.20, and the further sum of $46.75 on costs herein, being payment in full of all liability as sureties on the bond of said guardian, and ask the court to'be discharged from further liability herein. It is therefore ordered by .the court that said sureties be, and they are hereby,' discharged from all further liability herein. And it is ordered by the court that the. clerk of this court pay to said Charles Kalbus or his attorney the sum of $518.71, and, upon taking his receipt therefor, be discharged from any further liability on account of the same.”'
Whether Edward Write was legally liable upon the bond executed by him as surety for any sum, and, if so, to what amount, depended upon the character of the breach charged, and the date when it occurred. Whenever the amount of that liability was ascertained, whether by a finding and judgment of a court oi by an investigation of the accounts of the guardian, the surety had the right to pay the amount due, and to look to his principal in the bond, and any securities given by him, for repayment. But in the absence of a judgment against him, he could recover against his principal in the bond only such sum as he should prove
The appellee could recover upon his mortgage only such sum as he was legally liable for, and actually paid upon the particular bond executed by him. "What that amount was is not shown by the proof in the case. If he was liable for some amount on the bond executed by him and James B. White, the sum of such liability may be proved, and, if paid by the appellee Edward White, he can recover it in his action to foreclose his mortgage. The amount of that liability, however, must be established by other evidence than the order of the court declaring the total liability of Kalbus on all the bonds executed by him.
The release of the mortgage by James B. White, one of the mortgagees, did not affect the rights of Edward White under that instrument. Neither did the supposed settlement and discharge of Kalbus, as guardian, create an estoppel against Edward White to enforce his claim under his mortgage, if in fact he-became liable as surety for some amount, and actually paid it.
The evidence in regard to the payment of the $243.80 and costs by Edward White was singularly indefinite, but' seemed to indicate that the amount paid was advanced for him by the administrator of his father’s estate, and was charged against him as one of the heirs, in the account
The motion for a new trial should have been sustained. Judgment reversed, with instructions to sustain the motion for a new trial, and for further proceedings in conformity to this opinion.