15 Ind. App. 342 | Ind. Ct. App. | 1896
Lead Opinion
Appellee recovered judgment against appellants upon an appeal bond;
It is averred, in the complaint, that the Supreme Council of the Catholic Benevolent Legion, was a fraternal organization, incorporated under the laws of New York, with branch'or subordinate councils in various places; that in 1886, St. Julien Council No. 89 was established at Ft. Wayne, Indiana, and of this council one William Boyle became a member, and was thereby entitled to have $2,000.00 benefit paid, upon his death, to the appellee, his widow; that said William Boyle died in 1891, and suit was commenced upon the beneficiary certificate, and judgment recovered thereon by appellee, in the Allen superior court, from which the cause was appealed to this court, and here affirmed (Supreme Council, etc., v. Boyle, 10 Ind. App. 301); that the bond sued on was executed by the principal defendant as the appeal bond therein, and that the judgment is wholly due and unpaid.
Process was issued to Allen county for the Supreme Council, and returned served “by reading to John Daily, who is the president, and Owen Barry, who is
. All of the appellants joined in a plea in abatement, and all unite here in assigning as error the court’s action in sustaining a demurrer to the plea, which sets up that all the defendants, save the Supreme lodge, were residents of Newton county, Indiana.
The appellants insist that, under section 314, R. S. 1894 (section 312, Horner’s R. S.), a personal action against several defendants must be brought in the county where one of them resides, and rely upon McCauley v. Murdock, 97 Ind. 229, as conclusive. They very earnestly urged the overruling of Lindley v. Kreglo, 121 Ind. 176, which decides that where the court obtains jurisdiction over one defendant, in such actions, process may issue to other defendants, resident in every county in the State. In the view we take of the answer, we need not determine this question. An answer pleaded jointly by several, must be good as to all, or a demurrer to it is'properly sustained. Ward v. Bennett, 20 Ind. 440; Black v. Richards, 95 Ind. 184. So, also, a joint assignment of error must be good as to all, or it is not maintained. Hubbard v. Bell, 4 Ind. App. 180; Carr v. Carr, 137 Ind. 232. As to the Supreme Council, this plea was clearly bad. Being joint, it was, therefore, bad as to all. There was, therefore, no error in sustaining the demurrer to this
Upon no sound principle of law can we declare that one who does not sign the bond can be held liable' thereon. The bond shows upon its face, that the Supreme Council is not a party to it. It does not purport to be executed by the Supreme Council. There is nothing in it to indicate that itwas intended to be executed by the Supreme Council. “The execution of an instrument is the subscribing and delivering it, with or without seal.” R. S. 1894, section 455; Wild Cat Branch v. Ball, 45 Ind. 213; Scheid v. Leibschultz, 51 Ind. 38.
The counsel for appellee invoke the aid of a curative statute, section 1235, R. S. 1894 (section 1221 Horner’s R. S.), which provides that no such bond “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 the bond or recognizance.” It is further provided therein, that in actions “on a defective bond,” the defect may be suggested in the complaint, and recovery had thereon to the same extent as if it “were perfect in all respects.” They are defects that are to be cured by the statute. Where a bond is complete in all its parts, valid and sufficient, upon its face to accomplish the purpose for which the bond was intended, there is nothing upon which this statute can operate. Hart v. State, 120 Ind. 83. That tbe bond in question was complete and sufficient, without the execution by the Supreme Council, cannot be successfully controverted. Thom v. Savage, 1 Blackf. 52; Railsback v. Greve, 58 Ind. 72; Hinkle v. Holmes, 85 Ind. 405; Keene
Upon the trial, it was not proper for the appellants to prove that the deceased, whose life was insured, was not really dead, as appellee knew at the time of the former trial. That question was fully involved in the suit upon the certificate. So long as that judgment, rendered by a court properly invested with jurisdiction over the person of the defendant and the subject-matter of the action, stands unmodified, unreversed, and untouched by the hands of a court of equity, its validity cannot be attacked in this proceeding. For whatever relief the parties may be entitled to demand upon such an anomalous condition of affairs, they must appeal to a court of equity by a direct attack upon the judgment. Weiss v. Guerineau, 109 Ind. 438; Cavanaugh v. Smith, 84 Ind. 380; Wiley v. Pavey, 61 Ind. 457; Gaylord v. City of Lafayette, 115 Ind. 423; Cicero Tp. v. Pickens, 122 Ind. 260; Harmon v. Moore, 112 Ind. 221; Krall v. Libbey, 53 Wis. 292, 10 N. W. 386, would seem to place the sureties on the appeal bond
Although contrary to our first and present impressions, were the question an open one, we are constrained, by the decision in Fee v. State, ex rel., 74 Ind. 66, to hold that the execution of the bond by the sureties is not sufficiently alleged. This is a defect, not of form, but of substance.
Counsel for appellee depend upon sections 348 and 670, R. S. 1894, and assert that the merits of the case have been rightly determined.
The Supreme Court has many times declared that it would not look into the evidence to determine whether or not an error in overruling a demurrer to a bad complaint was harmful. Ryan v. Hurley, 119 Ind. 115; Culver, Admx., v. Yundt, 112 Ind. 401; Belt, etc., R. W. Co. v. Mann, 107 Ind. 89; Pennsylvania Co. v. Marion, 104 Ind. 239; Pennsylvania Co. v. Poor, 103 Ind. 553; Johnson v. Breedlove, Admr., 72 Ind. 368; Friddle v. Crane, 68 Ind. 583.
It is urged by counsel that, in the later case of Miller v. Bottenberg, 144 Ind. 312, that court has indicated a willingness to follow the views expressed by Judge Lotz, in Lake Shore, etc., R. W. Co. v. Kurtz, 10 Ind. App. 60, and to give full effect to the provisions of these statutes, and to disregard any error in overruling a demurrer, if it could really say, from the whole record, including therein the evidence, that the cause has been fairly tried and determined upon its merits. Even the application of the most liberal rule, however, would not suffice to avoid disaster to appellee in this court, because, under the recent case of McKinney v. Hartman, 143 Ind. 224, her complaint
To the complaint a general denial was filed. The evidence shows this bond executed for a term-time appeal. By section 650, R. S. 1894, to perfect a term-time appeal, the transcript must be filed in the office of the clerk of the Supreme Court within 60 days after filing the bond. The proper filing of the bond operates to stay proceedings on the judgment. This term-time appeal was not, in fact, perfected, but was abandoned, the transcript not being filed with the clerk within the 60 days. By section 651, therefore, appellee was entitled to execution after that time, had she procured a certificate of the clerk, showing the failure to file the record in time. The case, upon its merits, is directly within the McKinney case, which has been followed by this court in Midland R. W. Co. v. Holloran, 14 Ind. App. 392.
Under the holding of the Supreme Court, there was no right of recovery upon the breach of the bond alleged, viz.: failure to pay the judgment affirmed against- it on that appeal. Whether appellee acquired any substantial rights under the bond, if she were pursuing the parties for its breach, by reason of the failure to duly prosecute the appeal, we are not called upon to determine, but it is quite clear that she has not made out the case relied upon in her complaint.
Judgment reversed, with instructions to sustain the demurrer to the complaint, with leave to amend.
Concurrence Opinion
While concurring in the result reached in the opinion of Gavin, C. J., I am of the opinion that the complaint is defective for the following additional reasons, namely: Because it is not alleged either that the penalty of the bond or the time within which it was to be filed, was fixed by the court; or that it was approved by the court, or filed within the time fixed; or that the transcript of the judgment, for the stay of which the bond was given, was filed in the Appellate Court within sixty days after the appeal bond was filed; or that executon and other proceedings were stayed upon the judgment during the pendency of the appeal.
The statute, section 638, R. S. 1881 (section 650, Burns’ R. S. 1894), regulates term-time appeals, providing that “when an appeal is taken during the term a.t which judgment is rendered, it shall operate as a stay of all further proceedings on the judgment, upon an appeal bond being filed by the appellant, with such penalty and surety as the court shall approve, and within such time as it shall direct, payable to the appellee, with condition that he will duly prosecute his appeal and abide by and pay the judgment and costs which may be rendered or affirmed against him. * * * * * The transcript shall be filed in the office of the clerk of the Supreme Court within sixty days after filing the bond.”
Section 639, R. S. 1881 (section 651, Burns’ Rev. 1894), provides that: “In all cases appealed to the Supreme Court, where bond shall have been filed in the court below in term, and execution therein stayed, and the appellants shall fail to file in the office of the clerk of the Supreme Court the record of the cause so appealed wdthin the time required by law, the
If the appeal bond is filed and approved by the court during the term at which the judgment appealed from was rendered, no time for filing such bond need be fixed, but if the bond is not filed in term, the statute, section 638, supra, requires, in order to give validity to it, that the court in term shall approve the penalty and surety, and shall designate the time within which the bond shall be filed. The law is mandatory, and, unless it has been complied with, a bond filed is absolutely void, and will not operate to stay execution and other proceedings upon the judgment.' The other section (639, supra) provides that if the court has approved the penalty and surety, and fixed the time within which the bond shall be filed, and the bond is filed within the time designated, yet if the transcript perfecting the appeal is not filed in the office of the clerk of the Supreme Court within the time allowed by law, namely, within sixty days after the filing of the appeal bond, the judgment plaintiff may have execution.
The only allegations of the complaint before us, touching the execution or filing of the bond, or as to when the transcript was filed, are, that “said company prayed an appeal to the Supreme Court of the State, and, in pursuance thereof, did execute, on the 17th day of June, 1893, to this plaintiff, their bond, in the sum of $3,000.00, a copy of which bond is filed
In Ham v. Greve, 41 Ind. 531, which was an action on an appeal bond, the court, in ruling upon the sufficiency of the complaint, says: “It is insisted, by counsel for appellants, that in a complaint upon an appeal bond, in an appeal to this court, four things must affirmatively appear: first, that the penalty of the bond was fixed by the court; second, that the surety was approved by the court; third, that the bond was filed with the clerk within the time limited by the court; fourth, that the transcript was filed in the office of the clerk of the Supreme Court within sixty days after the filing of the bond. * * * * * It is alleged in the complaint, that the court approved of Bailsback as surety, but it is not alleged that the penalty of the bond was fixed by the court, or that the court directed in what time the bond should be filed, or that it was filed within the time directed, or when the transcript was filed, nor is it alleged that execution and other proceedings were stayed upon the judgment below, during the pendency of the appeal in this court; but it is averred that the bond was taken and approved by the clerk of the court below. As we have seen, neither the clerk of the Supreme Court nor of the court below has any power to take or ap
And in the case of Buchanan v. Milligan, 68 Ind. 118, also an action on an appeal bond, the court cited Ham v. Greve, supra, approvingly, and says: “There are-many defects in the complaint. There is no allegation that the penalty of the bond was fixed by the court,, or that the court directed in what time the bond should be filed, or that it was filed within the time-directed, or when the transcript was filed in the Supreme Court; nor is it alleged that execution and other proceedings were stayed upon the judgment beIoav, during the pendency of the appeal in this court.. For want of these allegations, the complaint was insufficient upon demurrer for want of facts.”
There can be no doubt about Ham v. Greve, supra; Buchanan v. Milligan, supra, stating the law correctly, for they simply follow the statute, and any ruling to the contrary must be in disregard of the- statute.
In McKinney v. Hartman, supra, which was an action upon an appeal bond, the breach charged being that the defendant had failed to pay the-judgment, it appeared from the allegations of the complaint that the trial court, at the- term the-judgment was rendered, fixed the penalty of the appeal bond and the time within which it was to be filed, and approved the surety, and that the bond was filed within the time fixed. It also appears, in the record in that case, that the transcript was not filed in the-office of the clerk of the- Supreme Court until after sixty days had elapsed from the time the appeal bond was filed, and the'court held that therewas no liability on the bond on account of the breach charged in the-complaint, for the reason that no term-time appeal