169 N.E. 39 | Ohio Ct. App. | 1929
The Peebles Ceramic Products Company filed its petition in the common pleas September 14, 1928, seeking to recover from the Royal Indemnity Company for material furnished by the plaintiff to one John Heier. The petition discloses that Heier had a contract with the city of Dayton for a public improvement, and that the indemnity company was surety thereon, bound, among other things, to pay all legal claims for material furnished for the work specified in said contract. Service was had upon the indemnity company, but it made default, and on October 25, 1928, judgment was rendered for plaintiff on default for the amount sued for. On December 22, 1928, the indemnity company filed a motion to set aside this judgment for the sole reason that the court had no jurisdiction to render judgment against the indemnity company, inasmuch as the contractor, and principal on the bond, was not a party to the cause. This motion was overruled and error is prosecuted from that order to this court.
It appears that the petition was an action on a bond given pursuant to Section 2365-1 et seq., General Code. The form provided for bonds of this *249 character is of a joint and several nature, and consequently the plaintiff had a right to maintain its action against the surety alone unless inhibited by some provision of the general law. Plaintiff in error claims that such provision is found in Section 11242, General Code, which authorizes any person entitled to the benefit of a bond to bring an action thereon against the person and his sureties. The claim is made that unless both the principal and the sureties are made parties defendant the court is without jurisdiction to entertain an action against the surety alone. It seems clear to us that this old Section 11242, governing actions upon bonds generally, has no application to the particular bond under consideration. The bond sued upon was by the terms of the statute authorizing it a joint and several instrument, and there is nothing in Section 11242 which undertakes to require an action upon a joint and several bond to proceed against both principal and surety in order to bind the surety. The section relied upon is consequently not applicable to the case at bar, and this was the conclusion of the Federal Circuit Court of Appeals of this district in Royal Indemnity Co. v. Cliff Wood, Coal Supply Co., 10 F.(2d), 501. Upon that authority we affirm the judgment herein.
If we were without the authority just cited, and if Section 11242 were held to apply to an action brought on a bond given under Section 2365-1 et seq., we would nevertheless be constrained to hold that the defendant could not after judgment attack the judgment as being beyond the jurisdiction of the court of rendition. The failure to make the principal a codefendant was, after all, nothing more than *250
a defect of parties. A defect of parties must be attacked by special demurrer, and a failure to demur is a waiver of the question. Hoop v. Plummer,
Judgment affirmed.
MIDDLETON, P.J., and BLOSSER, J., concur.