16 Ind. App. 615 | Ind. Ct. App. | 1896
Lead Opinion
This cause was transferred to this court by the Supreme Court, as belonging within this court’s jurisdiction. '
The appellee, Joseph B. Kelso, filed his complaint against his co-appellee, Kate Brouillette and the appellant James I. Kelso, as follows:
“The plaintiff complains of the defendants, and says, that heretofore, on the 19th day of November, 1882, one Jerome T. Kelso was largely involved financially, and had been for a long time prior thereto, and that on said day and for a long time prior thereto, plaintiffs were and had been securities for said Jerome T. Kelso, for the purpose of saving him from financial disaster, and that on said day above mentioned, plaintiff and defendants were- securities for said Jerome T. Kelso, in ,the sum of six thousand four hundred dollars ($6,400.00), evidenced as follows, to-wit: One promissory note payable to the First National Bank of Vincennes, Indiana, in the sum of one thousand four hundred and fifty dollars ($1,450.00), one promissory note payable to the First National Bank of Vincennes, Indiana, in the sum of two thousand dollars ($2,000.00), and also one promissory note payable to the Vincennes National Bank, of- Vincennes, Indiana, in the sum of four thousand dollars ($4,000.00). That prior to said date said parties had been and were securities for said Jerome T. Kelso, for said sums and divers other sums herein mentioned. That at said time and for a long time prior thereto the said Kate Brouillette was the mother-in-law of said Jerome T. Kelso, and that said James I. Kelso and Joseph B. Kelso were her brothers; at said time Kate Brouillette was the owner of a large amount of valuable real estate situated in Knox county, Indiana. That said James I. Kelso for a long time prior to said date, aforesaid, had become alarmed at the financial condi
“That while acting as such surety for said Jerome T. Kelso, as aforesaid, on said debts, aforesaid, at said time aforesaid, the plaintiffs and defendants entered into the following agreement, to-wit: “This agreement made and entered into this 25th day of November, 1882, between James I. Kelso, of Knox county, Indiana, the party of the first part, and Kate Brouillette, of Vincennes, Indiana, and Joseph B. Kelso, of Knox county, witnesses, of the second part, whereas the parties of the first and second parts are jointly and severally liable, and subject to the conditions hereinafter stated, as securities for one Jerome T. Kelso, as follows, viz.: On one promissory note to the
“Said Kate Brouillette is made a party hereto to answer whatever interest she may have had in said contract and said sums so derived from the sale of said real estate and rents and profits arising therefrom as mentioned and stipulated in the aforesaid contract. Wherefore plaintiff prays judgment against the defendant for an accounting of the rents and profits which were received on account of the sale thereof, and for judgment in the sum of ten thousand dollars ($10,000.00), and for all other relief in the premises.”
The appellee, Kate Brouillette, did not answer the complaint, neither was she defaulted, nor was any judgment rendered for or against her in the court below.
The sufficiency of the facts alleged in the complaint to state a cause of action are vigorously assailed, the appellant insisting that the theory upon which the complaint proceeds is to establish and enforce a parol trust.
The material allegations of the complaint are that, on the 19th day of November, 1882, and for a long time prior thereto, the appellees were sureties for one
Our statute, section 3391, Burns’ R. S. 1894 (2969, R. S. 1881), provides that, “no trust concerning lands, except such a,s may arise by implication of law, shall be created, unless in writing, signed by the party creating the same.”
If this is an action to establish and enforce an express trust, as appellant contends, created by parol, it must fail. Matlock’s, Admr., v. Nave, 28 Ind. 35;
If, as alleged in the complaint, the property was conveyed to the appellant by a deed absolute on its face, but in truth and in fact it was to be held as an indemnity, to protect the appellant from loss as such surety, the deed of conveyance was nothing more than a. mortgage. It is well settled that a deed absolute on its face may be shown by parol to be simply intended as á mortgage. Loeb v. McAlister, 15 Ind. App. 643.
The demurrer admits that the property was conveyed to the appellant to indemnify him against loss in the event that he was compelled to pay any part of the obligations upon which he and the appellee were sureties. When the appellant accepted a conveyance of the property to indemnify him against loss, a trust by implication of law arose in favor of the appellees, and he held the property not only as an indemnity for himself, but also as an indemnity for his co-sureties. Where one of several sureties, who are jointly liable, is indemnified, the indemnity inures to the benefit of all, and the one holding the security by implication of law becomes a trustee for his co-sureties. Sanders v. Weelburg, Exx. 107 Ind. 266; Moorman v. Hudson, 125 Ind. 504.
We think it apparent from the facts alleged that the appellant received property to indemnify him against loss, in the payment of obligations upon which the appellees were equally liable as his co-sureties ; that he converted the property into money; and, although the appellees were compelled to pay these obligations upon which they and the appellant were jointly liable, he did not account to them for their share of such indemnity.
The complaint states a cause of action, and the
The other questions urged for our consideration arise on the ruling on the motion for a new trial. The appellees contend that none of the questions relating to the ruling are properly before the court for the reason that the evidence is not properly in the record.
We have before us, as the record in this case, a “complete transcript of the record and proceedings” of the court below, properly certified to as such by the clerk of the Knox Circuit Court. In this transcript are copies of the complaint and the demurrer thereto; the answers and the demurrers thereto; the replies; the verdict of the jury, with interrogatories and answers thereto; the motion for a new trial; the appeal bond, and a bill of exceptions containing the instructions, those asked and refused as well as those given; also copies of the order-book entries in said cause. This transcript, as already stated, is properly certified to by the clerk. Following this certificate of the clerk to such transcript is another certificate of the clerk wherein he certifies “that the annexed and subjoined longhand manuscript of the evidence in said cause taken by Helen Hinkle, the shorthand reporter in said cause, was filed in my office, December 21, 1898, and that the signature of E. A. Ely, the special judge thereto, is the genuine signature of said judge.” Following this certificate is what purports to be a bill of exceptions containing the evidence as taken down in shorthand by Helen Hinkle, shorthand reporter, and by her transcribed into longhand.
The proper place for a bill of exceptions in a transcript, in order that it may be considered in the record, is some place before the certificate of the clerk, which should be at the end and not at the beginning of the transcript.
It is absolutely necessary that the record show affirmatively that the bill of exceptions was properly filed with the clerk after it had been signed by the court. To file the longhand manuscript of the evidence is not sufficient. The longhand manuscript of itself does not constitute a bill of exceptions; but after such manuscript is embodied into a formal bill, presented to and signed by the court, it becomes a bill of exceptions, and, when filed, becomes a part of the record. Evansville Street R. W. Co. v. Meadows, 13 Ind. App. 155; DeHart v. Board, etc., 143 Ind. 363; Ueker, Admx., v. Bedford Blue Stone Co., 142 Ind. 678; Peerless Stone Co. v. Wray, 143 Ind. 574; Salem Bedford Stone Co. v. Hobbs, 144 Ind. 146; Miller, Admx., v. Evansville, etc., R. R. Co., 143 Ind. 570.
Again it is insisted that the evidence is not in the record because it was not filed, either in the form of the longhand manuscript or as a bill of exceptions, within the time designated by the court.
It appears from the record that the appellant was granted ninety days from June 26,1893, to file his bill of exceptions. The clerk certifies that the longhand manuscript was filed in his office on the 21st day of December,' 1893.
This objection seems to be well taken. Mason v. Brody, 135 Ind. 582; Holt v. Rockhill, 143 Ind. 530;
If the bill of exceptions was in fact filed after it was signed by the court, and the clerk failed to make the transcript so state, the appellant has had ample time, since appellees’ counsel raised the objection to considering it as in the record, to have had the transcript corrected.
The judgment of the court below is affirmed.
Rehearing
On Petition for Rehearing.
Appellant has filed a petition for rehearing in which he earnestly contends that the court in its original opinion, “overlooked the plain and unmistakable record,” in holding that the bill of exceptions was not properly in the record, and could not be considered. In view of the earnest appeal of the appellant in his brief in support of his petition for a rehearing, we have examined the record with much care. The record shows that appellant’s motion for a new trial was overruled June 26th, 1893, “to which decision■ of the court the defendant at the time excepts, and ninety days’ time is given in which to prepare and file his bill of exceptions.” We have quoted the exact language of the record, from which it appears that the time for filing the bill of exceptions expired ninety days from June 26th, which would be September 23, 1893. Section 1476, Burns’ K. S. 1894 (1410 Horner’s B. S. 1896), provides: “Whenever, in any cause, such verbatim report shall have been made by an official reporter, the original longhand manuscript of the evidence, by him made, may be filed with the clerk of the court by the party entitled to the use of the same; and in case of an appeal to the Supreme Court, * it shall be the duty of the clerk, if requested to do so by said party, to certify the said original manuscript of
The only evidence in the record that the original longhand manuscript was ever filed in the clerk’s office is the certificate of the clerk that “the annexed and subjoined longhand report of the evidence in said cause ***** ivas filed in my office, December 21st, 1893.” It appears therefore on the face of the record that the “longhand report of the evidence” was not filed in the clerk’s office until nearly three months after the time fixed by the court for filing a bill of exceptions, and as such filing of the evidence must precede the filing of the bill of exceptions, it follows that the evidence is not properly in the record. Appellant contends under the provisions of section 641, Burns’ R. S. 1894 (629, Horner’s R. S. 1896), that delay of the judge in signing and ■ filing the bill of exceptions, should not deprive the party objecting to the benefit thereof. In this contention appellant is right, but in
In the absence of an affirmative showing of these facts, we must hold, in harmony with the decisions quoted, that the evidence is not in the record.
Petition for hearing overruled.