24 Ind. 421 | Ind. | 1865
Action upon an administrator’s bond. A demurrer was filed to the complaint, which was overruled by the court.
The complaint alleges that the bond was given “for the purpose of continuing the letters of administration.” This renders it clear that a former bond had been given, as no letters of administration can issue except upon the filing of a bond. 2 G. & H., § 19, p. 489. This bond, then, may have been required by the court because the sureties upon the first bond were insolvent, or because the penalty of the first bond was insufficient; in either of which cases, the sureties upon the bond set out in the present suit would not be liable until the remedy upon the first bond had been exhausted. Or the present bond may have been required by the court upon the application of the sureties upon the first bond to be discharged from further liability, in which case, the defendants in this action might be held liable for a default in not paying over money collected after the execution of the present bond. It will be seen from the complaint, that it does not aver facts sufficient to enable us to determine whether there is any liability resting on the sureties in the present bond to answer to this action. The demurrer, therefore, filed by the sureties, should have been sustained. The defendants (the sureties) answered in two paragraphs, to each of which a demurrer was sustained. The demurrer should have reached back to the complaint, and have been sustained to that, as even a bad answer is sufficient to a bad complaint.
The appellee insists that the words, “continuing the letters,” should be treated as surplusage. We cannot so regard them. They are an averment of fact, and, if true,.
The cause is reversed and remanded, with directions to the court below to sustain the demurrer filed by the sureties to the complaint, and grant leave to the plaintiff to amend.
