58 Ind. 72 | Ind. | 1877
This was an action by the appellees, as plaintiffs, against the appellant and one Jason Ham, as defendants, in the court below.
In their complaint, the appellees alleged, in substance, that, on the 24th day of May, 1869, the appellees recov
“Know all men by these presents, that we, Jason Ham and Joel Railsbaek, are held and firmly bound unto Henry Greve, William Buhrlage and Julius Eschman, in the penal sum of one thousand dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally. Sealed with our seals, and dated this 9th day of June, 1869.
“The condition of the above obligation is such, that whereas, on the 24th day of May, 1869, the said Greve, Buhrlage and Eschman recovered, in the Wayne court of common pleas, of Wayne county, Indiana, a judgment against said Ham for the sum of $462.50, and the costs of suit, from which judgment the said Ham appealed to the Supreme Court of Indiana: Now, if the said Ham shall duly prosecute his said appeal, and pay the judgment
(Signed,) “ Jason Ham.
“ Joel Railsback. ”
And the appellees averred, that, upon the filing as aforesaid of said appeal bond by said Ham and MehTett, execution and all proceedings on said judgment were stayed, until after said appeal was heard and decided by said Supreme Court; that said Ham and McUett fully perfected their said appeal from saidjudgment, and on the 10th day of July 1869, filed a transcript and record of said proceedings and judgment, in said Supreme Court; that afterward, on the 24th day of Eebruary, 1871, the said judgment was fully affirmed by the judgment of said Supreme Court, which latter judgment was duly certified down to said court of common pleas on the 17th day of June,T871; that, by reason of the affirmance of said judgment by said Supreme Court, the said Ham and the appellant, Railsback, became and were liable to the appellees for the payment of said judgment, which said judgment, interest and costs were due and unpaid, and that the penalty of said appeal bond was due and unpaid. Wherefore, etc.
There was a second paragraph of this complaint, which does not differ materially from the first paragraph, except in this: that the name of James G-. McUett does not appear in the second paragraph, either in the description of the judgment of said court of common pleas, or in the prayer for an appeal therefrom, or elsewhere in said second paragraph.
To each of these paragraphs of complaint, the appellant demurred, for the alleged want of sufficient facts therein to constitute a cause of action'; which demurrers were overruled by the court below, and to these decisions the appellant excepted.
The a*ppellant then answered, in six paragraphs, the appellees’ complaint, as follows:
Second. Payment in full, of the judgments described in the complaint, before the commencement of the action..
Third. The bonds sued upon were given without a consideration.
Fourth. In the fourth paragraph of his answer to the first paragraph of the complaint, the appellant alleged, in substance, that, after the filing in said court of common pleas of the said certified copy of said judgment of the Supreme Court, the appellees caused an execution to be issued, on the — day of-, 1871, out of said court of common pleas, on the day the judgment was affirmed as aforesaid, to the sheriff of said county, commanding him to levy the amount of said judgment, interest and costs, of the property of said judgment defendants, in said county, subject to execution; that said execution came to said sheriff’s hands, on the — day of-, 1871, and by virtue thereof, and within two months after its date, said sheriff levied the same, on the — day of-, 1871, on certain real estate of said Jason Ham, in said county, subject to execution, of the value of five thousand dollars, which said levy had never been discharged legally, by sale or otherwise; and that all costs on said appeal, in said Supreme Court, had been fully paid before the commencement of this suit.
Fifth. And for further answer to the second paragraph of complaint, the appellant said, in substance, that, after the filing, in said court of common pleas, of said certified copy of said judgment of the Supreme Court, on the — day of—, 1871, the appellees caused an execution to be issued out of said common pleas court, directed to the sheriff of said county, commanding him to levy the amount of said judgment of the property of said judgment defendants, in said county, subject to execution; that said execution came to said sheriff’s hands on said day, and within ten days thereafter said sheriff', by virtue of said execution, levied upon and seized certain personal property of the said Jason Ham, subject to execution, of the value of one thousand
Sixth. And for further answer to the first paragraph of complaint, the appellant said, in substance, that, after'the filing of said certified copy of said judgment of the Supreme Court, in said court of common pleas, on the — day of —, 1872, the appellees caused an execution to be issued out of said court, upon said judgment, to the sheriff of said county, commanding him to levy the amount of said judgment, interest and costs, of the property of said judgment defendants, in said county, subject to execution; that on the same day said execution came to the hands of said sheriff, and the said Jason Ham then had real and personal property, in said’ county, subject to execution, of the value of five thousand dollars, out of which said judgment, interest and costs might, with proper diligence, have been fully made; but that, after the issue of such execution, and within one hundred and eighty days thereafter, the appellees ordered and directed said sheriff to return said execution, and said sheriff accordingly returned said execution without making any levy thereof, or making any search or inquiry for property on which to levy; that, after said return of said execution, the said Ham became wholly insolvent, and on the — day of-, 1873, died insolvent, and left no estate out of which said judgment, or any part thereof, could be made; and that all costs on said appeal, in said Supreme Court, were fully paid by appellant before the commencement of this suit.
The appellees demurred to each of the fourth, fifth and
The appellees replied, by a general denial, to the second, third, fourth and fifth paragraphs of the appellant’s answer; and they also replied specially, in a second and third paragraph, to the fifth paragraph of said answer. To the second and third replies, the appellant demurred for the want of sufficient facts therein, which demurrers were overruled, and the appellant excepted. Before trial, however, the appellees withdrew their, second and third replies. The issues joined were tried by the court below, and a finding and judgment were made and rendered in favor of the appellees, and against the appellant, for the sum of six hundred and forty-four dollars and fourteen cents. The appellant’s written motion for a new trial was overruled, and he excepted to this decision; and his bill of exceptions is propei’ly in the record.
In this court, the appellant has assigned, as errors, the following decisions of the court below, to wit:
1st. In overruling his demurrer to the first paragraph of the complaint;
2d. In overruling his demurrer to the second paragraph of the complaint;
3d. In sustaining the appellees’ demurrer to the sixth paragraph of the appellant’s answer;
4th. In overruling his demurrers to the second and third paragraphs of the appellees’ reply; and,
5th. In overruling his motion for a new trial.
The several questions presented by these alleged errors will be considered and decided in the order of their assignment.
1st. Appellant’s learned attorney insists, as we understand his argument, that the first paragraph of the complaint is fatally defective, because of the apparent vari
Appellant’s counsel also seems to think, that the appeal bond in suit is fatally defective, because it was not executed by said James G-. McNett. In our opinion, there is nothing in this objection. The bond would certainly have been been valid and binding on the appellant, if it had not been executed by either of the judgment defendants. Thom v. Savage, 1 Blackf. 51. And we think, that the fact that the bond in the case was executed by one, and not by both, of the judgment defendants, did not affect the validity of said bond, nor- impair in any way the appellant’s liability thereon.
In conclusion, we hold that the court below committed no error, in overruling the appellant’s demurrer to the first paragraph of the appellees’ complaint.
2d. Appellant’s attorney has failed to discuss, in argument, the alleged insufficiency of the second paragraph of the appellees’ complaint. Indeed, as we understand him, he frankly concedes in this court, in his brief, that the second alleged error of the court below is not well assigned. Eor the learned counsel says of said second paragraph, that it is “ the only good paragraph ” of the complaint. He claims, it is true, that this second paragraph was not sustained by any sufficient evidence; but that fact, if it be the fact, does not affect in any manner the question presented by the second alleged error, namely, the sufficiency of the facts stated in said paragraph to constitute a cause of action. There is nothing in this alleged error, and it is manifest that appellant’s counsel is of this opinion.
3d. The third alleged error, complained of by appel
It is very clear, that the liabilities of the obligors, whether principal or surety,' in such a bond as the one sued on in this action, are limited to such damages as the obligee or obligees therein may sustain, if the appellant or appellants shall not duly prosecute his or their appeal, and shall not abide by and pay the judgment and costs, which may be rendered or affirmed against him or them, on such appeal. Such are the -terms of the contract, which the law requires that the obligors, principal and surety, in such a bond shall execute. 2 R. S. 1876, p. 240, sec. 555. And however defective such a bond may be, if it is shown by proper suggestions or averments in what case such bond was filed, section 790, before cited, further provides, that “the principal and surety shall be bound by such bond, * * * * to the full extent contemplated by the law requiring the same, and the sureties to the amount specified in the bond.” Sturgis v. Rogers, 26 Ind. 1. In such a case, it seems very clear tó us, that the obligees in the appeal bond may at once, and in the first instance, enforce the collection of their judgment against the obligors in such a bond, without any attempt to collect such judgment from the judgment defendants. If this view of the matter is correct, and we think it is, it
4th. The appellant has assigned, as his fourth error, the decisions of the court below, in overruling his demurrers to the second and third paragraphs of the appellees’ reply. The record shows, however, that before the trial of this cause the appellees, with leave of the court below; withdrew these paragraphs of their reply. When these paragraphs were withdrawn, the decisions of the court below thereon went with them; and, therefore, this fourth alleged error is not in the record.
. 5th. The fifth and last alleged error, complained of by the appellant in this court, is the overruling by the court below of his motion for anew trial. Among the causes for a new trial, assigned in said motion, were several alleged errors of law, occurring at the trial and excepted to by the appellant. We will consider and decide,, as briefly as we can, the several questions presented by these alleged errors of law. Of course, the appellant objected to the admission in evidence of the several orders, and the judgment of the court below,- in the original suit of the ■appellees against said Ham and McNett, and of the appeal bond in that.case, which was sued on in this action, upon the ground of the apparent variance between the orders and judgment in said original suit, and the recitals in said appeal Bond.' ’ When these objections were severally overruled by the court below, the appellant excepted to these decisions. These alleged errors of law, occurring at the trial, present precisely the same questions which were presented by the appellant’s demurrer to the first
J. B. Julian, Esq., a witness for the appellees on the trial in the court below, testified as follows:
“I was one of the attorneys in the case of Henry Greve and others i\ Jason Ham and James G. McNett, in the court of common pleas of Wayne county, for plaintiffs; and, on appeal to the Supreme Court of said cause, I 'was attorney for the appellees in the court last named. I am acquainted with the handwriting of Theo. W. McCoy. He was acting as clerk of the Supreme Court of Indiana on the 4th day of August, 1869, and the endorsement on exhibit 4 B,’ showing the filing thereof, is in his handwriting. And I know, that exhibit4 B ’ was the record taken from the Wayne court of common pleas, and used as such in the case of Henry Greve and others v. Jason Ham and James G. McNett. No. 3336.”
And, on cross-examination,Mr. Julian further testified:
441 found exhibit4 B ’ in the clerk’s office of the Supreme Court, and it was handed to me by the clerk thereof on last Monday.”
Elsewhere, in the record, it appears that the appellant objected elaborately and at length to each sentence of the evidence of said J. B. Julian, and that each of his objections was overruled by the court below, and the entire evidence of the witness, as we have set it out, was admitted. But the record wholly fails to show, that the appellant excepted to any of these deci|ions, in regard to the admission of Mr. Julian’s evidence. 44 It is firmly settled that unless an exception is taken and entered upon the record in the manner prescribed by statute, at the time the decision is made in the court below, the objection .is waived, and the record presents nothing for the
It also appears from the record, that certain writings, called exhibits, were offered by the appellees, and admitted by the court below, in evidence, over the appellant’s objections and.exceptions. These writings, called exhibits, were not set out in appellant’s bill of exceptions, and are not in the record. In the absence of these exhibits, the questions raised and discussed by appellant’s counsel, in regard to their admission in evidence, are not properly presented for our decision. And so, also, with regard to another question, which is discussed very elaborately by appellant’s learned attorney in this court, and that is, that the finding of the court below, in this case, was not sustained by sufficient legal evidence. Where, as in this case, it is apparent on the face of the bill of exceptions, that it does not contain all the evidence adduced on the trial, this court will not, and ought not to, reverse the judgment of the court below on any question as to the weight or sufficiency of the evidence. Buskirk Practice, p. 149, and authorities cited.
In conclusion, we hold that the court below did not err, in overruling the appellant’s motion for a new triaí.
The judgment of the court below is affirmed, at the costs of the appellant.