179 Ind. 173 | Ind. | 1913
The appellant had recovered a judgment against one Walter B. Barnes in the city court of Valparaiso. Barnes appealed to the circuit court where judgment was again rendered against him in favor of the appellant. The appeal was taken upon the following bond:
*175 “Know all men by these presents, that we, Walter B. Barnes, P. W. Clifford, Geo. T. Miller and C. J. Kern are held and firmly bound unto Joseph Husak in the penal sum of Five Hundred and Fifty Dollars, for the payment whereof well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated this 5th day of October, 1904.
Whereas the said Joseph Husak, lately, to-wit on the 28th day of June, 1902, in the City of Valparaiso Court of the County of Porter in the State of Indiana, recovered judgment against said Walter B. Barnes for the sum of $449.85, and costs and whereas said Walter B. Barnes has appealed therefrom to the Porter Circuit Court of the State of Indiana, now therefore, the condition of the above obligation is to the following, to-wit: that if said Barnes shall duly prosecute said appeal, and abide by and pay the judgment and costs which may be rendered or affirmed against him, then this obligation to be void, otherwise to remain in full force and effect.
P. W. Clifford,
Geo. T. Miller,
C. J. Kern.”
Appellant brought this action on the bond against appellees, the sureties thereon. Each of the appellees in addition to a verified general denial answered the complaint specially, alleging substantially the same facts. In substance these answers alleged that the appellees signed the bond as sureties for Barnes at the solicitation of one acting for him and without other consideration; that at the time they signed, it was agreed and understood that Barnes was to sign it as principal and coobligor and that it was not to be delivered for filing and approval or filed and approved until he had so signed it; that in violation of the condition it was delivered by the person who procured them to sign it, and it was filed and approved by the acting judge of the city court without the knowledge or consent of the appellees; that at the time he approved the bond the acting city judge had reason to and
Appellant’s demurrers to these special answers were overruled and the correctness of these rulings is presented.
No error is shown and the judgment is affirmed.
Note.—Reported in 100 N. E. 466. See, also, under (4) 32 Cyc. 41; (6) 2 Cyc. 986; (7) 31 Cyc. 49; (9) 2 Cyc. 1014. As to the effect of fraud or mistake on. the liability of surety on appeal bond, see 38 Am. St. 710; 67 Am. St. 197. As to what amounts to constructive notice, see 45 Am. Rep. 184. Por a discussion of the failure of the principal to sign an obligation as affecting the liability of a surety, see 2 Ann. Cas. 225, Ann. Cas. 1912 A 1014.