14 Ind. App. 631 | Ind. Ct. App. | 1896
One question only is presented by this appeal, and that is as to the sufficiency of the complaint.
The material averments in the complaint are, that in the year 1893, the appellees were the owners of a farm of seventy-three acres, in Jackson township, Huntington county, Indiana, and that the appellant Irvin Shroyer was in possession of said property, claiming as a tenant, which rights were disputed by appellees; that in March,
It clearly appears that said William Simons and Dorinda J. Simons were both parties to the action and the judgment for the possession of the farm, and that said Shroyer appealed from that judgment by executing the bond in suit. Is the complaint insufficient because Dorinda J. Simons is not named in the appeal bond? Sections 7106, 7115, inclusive, R. S. 1891.
The statute provides that the signer of each bond shall be bound to the full extent contemplated by the law requiring the same, and that in an action on a defective bond, the plaintiffs may suggest the defect in the complaint and recover to the same extent as if such bond were perfect in all respects. Section 1235, R. S. 1894; Opp v. TenEyck, 99 Ind. 345.
In the case last cited, which was an action on an appeal bond, Judge Zollars said: “The force and effect of this section is to cure defects and supply omissions in the class of bonds named, whether the defects and omissions be of form or substance, and to hold the obligors, both principals and sureties, to the full extent of the law requiring the bond.”
In this case the judgment for possession was in favor of both appellees. The appeal bond expressly provided for the payment of “ accrued rent. ” By virtue of the appeal Shroyer held the possession of the farm and the appellees were deprived of the use and rental of said property during the year of 1893.
Under the circumstances disclosed in the complaint, the defect in the bond, growing out of the omission of the name of Dorinda J. Simons therein, will be regarded as cured and the appellants held liable to the full extent of the statute under which the bond was executed.
It is not necessary to consider the motion of appellees to dismiss the appeal, nor the alleged defect in the
Judgment affirmed.