56 Ind. App. 394 | Ind. Ct. App. | 1914
On February 2, 1911, the State of Indiana, by her attorney, filed a complaint in the Sullivan Circuit Court in a suit on a bond executed by Andy Weaver as principal and Frank Weaver, surety, which had been previously declared forfeited by a justice of the peace of said county. To this complaint Frank Weaver filed a general denial on May 8, 1911, and on June 24, 1911, Frank Weaver produced his principal in open court and filed a written motion to be discharged upon his offer to pay such costs as the court might adjudge against him. To this motion the State answered, stating that after the forfeiture of the bond sued on, an affidavit was filed in the Sullivan Circuit Court, charging Frank Weaver’s principal with the same identical offense for which the bond sued on was taken before a justice of the peace in said Sullivan County; that process was issued upon said affidavit and the principal was brought into court by the sheriff, that the principal entered a plea of guilty and judgment was had against him, that all of these proceedings were had before the motion for a discharge and the alleged surrender of the principal by the surety, Frank Weaver. To this answer the surety, Frank Weaver, filed a demurrer for want of facts, and the court’s ruling in overruling the demurrer is relied upon for a reversal. Frank Weaver then filed a general denial in reply to the State’s answer to his motion, and also filed an additional paragraph of answer to the State’s complaint, in which he alleged that he signed the bond sued upon, but that before final judgment against him upon the bond, he, pursuant to §2027 Burns 1914, Acts 1905 p. 584, §156, brought his principal into open court and surrendered him,
The court erred in overruling appellant Prank Weaver’s demurrer to the State’s answer to his motion for discharge, and in sustaining the State’s demurrer to his second paragraph of answer to the complaint, and for these errors the judgment is reversed.
Note. — Reported in 105 N. E. 517. As to what will excuse surety from producing principal, see 99 Am. Dec. 216. See, also, under (1) 5 Cyc. 126; (2) 5 Cyc. 117; (3) 5 Cyc. 115; (4) 5 Cyc. 127.