112 Ind. 489 | Ind. | 1887
Appellant brought this action to quiet her title to the land described in her complaint. Silas Dailey and Melissa J. Knight, appellees here, were defendants below, and filed answers and cross-complaints.
Upon a trial of the cause the court found against, appellant, and in favor of appellees, both upon appellant’s complaint and upon their cross-complaints.
■On the 3d day of July, 1885, appellant made an application for a new trial as a matter of right under the statute, and filed a bond with a surety, which was approved by the court,-conditioned that she should pay to appellees, or either of them, all costs that might be recovered against her in the cause.
On the 12th day of October, 1886, appellees filed separate motions asking that the order granting a new trial as of right, on the 3d day of July, 1885, might be set aside and
The statute provides that the court rendering judgment in a case like this, on application made within one year thereafter by the party against whom judgment is rendered, etc., and on the applicant giving an undertaking, with surety, to be approved by the court or clerk, that he will pay all costs and damages which shall be recovered against him in the action, shall vacate the judgment and grant a new trial. R. S. 1881, section 1064.
That this case, being one to quiet title to land, is one in which, under the statute, a new trial may be demanded as of light without cause, is conceded.' See Physio-Medical College v. Wilkinson, 89 Ind. 23, and eases there cited.
The bond filed by appellant and approved by the court is not as broad in its terms as the statute requires. There are omitted from it the words “and damages.” We are satisfied, however, that, under the law and the peculiar circumstances of this case, that omission was not of itself sufficient to justify the court in setting aside the order granting a new trial and striking the cause from the docket. In the first place, the bond, while informal, was not invalid. It secured to appellees all that would have been secured to them by a bond in every respect formal, and in the words of the statute. We have a statute which provides that “ no bond, recognizance, or written undertaking taken by any officer in the discharge of the duties of his office, shall be void for want of form or substance or recital or condition, nor the principal or surety be discharged; but the principal and surety shall be bound by such bond, recognizance, or written undertaking to the full extent contemplated by the law requiring the same, and the sureties to the amount specified in
Under this statute appellant and her surety were bound just as fully for all damages that might have been recovered in the action as if the bond had contained the words “ and damages.” It was a bond taken by the judge, an officer., in the discharge of the duties of his office, and, in the language of the statute, appellant and her surety were bound by it “ to the full extent contemplated by the law requiring the same.” -That this is so, is settled by many decisions of this court. Opp v. TenEyck, 99 Ind. 345, and cases there cited. See, also, Yeakle v. Winters, 60 Ind. 554; Vincennes Nat’l Bank v. Cockrum, 64 Ind. 229; Hawes v. Pritchard, 71 Ind. 166; Patterson v. State, 10 Ind. 296; State v. Soudriette, 105 Ind. 306, and cases there cited.
An application to the present statute of the strict rules applied to the former statute, requiring the payment of all costs as a condition precedent to the granting of a new trial as of right and without cause, would require a holding here that appellees might have demanded that the bond should be upon its face strictly as the statute provides. And had they objected to the bond at the time it was filed, on the ground that it did not contain the words “ and damages,” it would have been the duty of the court to require a bond containing those words, and to have denied a new trial had appellant declined to file such a bond. But in the case before us appellees neither demanded such a bond, nor did they object to the bond, although present in court when it was filed, on the ground that it did not contain the,words “and damages.” They made no objection to the bond until more than a year after it had been accepted and approved and the new trial granted. It is stated in the record made by the clerk that, .at the time the new trial was granted, appellees each excepted
So far as shown by the record, nothing further was done in the case until the 22d day of June, 1886. It is recited in the record that on that day, the parties being present by their counsel, the court appointed Hon. A. G. Cavins as a special judge to try the cause. It is further recited in the record that, on the 24th day of the same month, the parties being present by their counsel, the special judge thus appointed appeared, accepted the appointment, and set the cause for trial on the 29th day of the same month. On the day set for trial appellee Dailey filed a motion, supported by an affidavit, for a change from'the special judge, stating in his affidavit that neither he nor any of his attorneys “who had taken an active part in the defence of the cause was present in court on the 24th when the cause was set for trial.” The change was granted, and Hon. B. E. Rhoads was appointed to try the cause. Appellee Dailey filed a bill of exceptions, in which it is stated that he entered a special appearance and filed his motion and affidavit for a change of judge, and that he objected and excepted to the appointment of Mr. Rhoads to try the cause.
It is recited in the record still further that, on the 30th day of the same month, appellant and appellee Dailey being-present in court by counsel, Mr. Rhoads appeared and accepted the appointment as special judge to try the cause, and that the cause was by him continued until the next regular term. It will thus be seen that, although present in court by counsel when the bond was tendered and approved, and although thus present in court at various times subsequently
The judgment is reversed, at appellees’ costs, and the cause is remanded, with instructions to the court below to reinstate the cause upon the docket, and to set aside its order vacating the order of July 3d, 1885, granting a new trial to appellant.
