77 Ind. 585 | Ind. | 1881
The appellees, plaintiffs below, allege, in their complaint, that, on the 12th day of September, 1875, an action was pending in the Ripley Circuit Court, wherein David T. Hunter was plaintiff, and Rebecca Dixon and Joseph Dunlap and others were defendants, to foreclose a mortgage, executed by John Dixon and Rebecca Dixon to Arehelaus Lingo, conveying to the said Lingo the real estate therein described as security for the payment of two notes, executed by the said John and Rebecca Dixon, and assigned to said Hunter; that said complaint also alleged that the said John and Rebecca Dixon had executed a subsequent
The bond is as follows :
“Know all men by these presents, that we, Joseph Dunlap and William D. Willson, are held and firmly bound unto David T. Hunter, in the penal sum of $750, to the payment of which well and truly to be made and done, we bind ourselves, our heirs, executors and administrators and assigns jointly and severally, firmly by these presents, sealed with our seals and dated this 18th day of December, 1875. The condition of the above obligation is such, that whereas, heretofore, to wit, on the 18th day of September, 1875, the said David T. Hunter, in the Ripley Circuit Court, recovered a judgment against the said Joseph and Rebecca Dixon for the foreclosure of a mortgage for the sum of $468 in damages and costs of suit, from which said judgment of said Ripley Circuit Court the said Joseph Dunlap appeals to the .Supreme Court of Indiana. Now, if the said Joseph Dunlap shall well and duly prosecute his said appeal, and abide by and pay any judgment and costs that may be rendered or affirmed against him, then the above obligation to be null and void, otherwise to remain in full force and virtue in law. “Joseph Dunlap, [l. s.] ' “William D. Willson, [l. s.]’>
The bond sued on is in accordance with the statute upon the subject, and provides that Dunlap shall duly prosecute his appeal, abide by and pay any judgment that may be rendered or affirmed against him. It is not alleged in the complaint that Dunlap failed duly to prosecute his appeal, nor that he failed to pay. any judgment rendered or affirmed against him. It is not shown that any judgment was rendered against him for any sum in the court below, but, on the contrary, it is expressly stated in the complaint that no such judgment was rendered against him. It may, perhaps, be inferred from the facts stated in the complaint, that a judgment was rendered against Dunlap, in this court, for the costs of the appeal; but, if so, there is no allegation that it has not been paid, nor is it shown that the appellees are, or ever were, in any way liable for or interested in such costs.
The only judgment or decree taken against Dunlap in the appealed case in the court below was, that the Lingo mortgage had not been satisfied, and that the mortgage of Dunlap was junior to it. It was from this decree that Dunlap appealed. The effect of the appeal was to suspend the right of Hunter to sell the mortgaged premises until the appeal should be determined. The complaint shows, that, after the appeal had been determined, the premises were sold on a decretal order issued on Hunter’s decree foreclosing the •
It is said that the bond recites the fact, that a judgment had been rendered against both Rebecca Dixon and Dunlap,, and that such recital estops the appellant to deny the fact, recited. But the recital does not estop the appellees, and they show by their complaint that no personal judgment was rendered against Dunlap in the court from which the appeal was taken. Nor is this case analogous to that of Railsback v. Greve, 58 Ind. 72. In the latter case, there was a judgment against.Ham & McNett, but in the condition of the bond it was stated to have been rendered against Ham only. The appeal was taken from the judgment rendered against Ham & McNett, and the court held, that, under section 790, 2 R. S. 1876, p. 811, the misdescription of the judgment in the bond was not fatal. But here there was no judgment for any sum against Dunlap, nor did the law require him, in order to perfect his appeal from'the decree against him, to bind himself to pay a judgment against Rebecca Dixon, or to pay any debt due from her or others to Hunter. The appeal was taken by Dunlap alone, and any misdescription of the judgment from which the appeal was taken, contained in the condition of the bond, might, as held in the case just referred to, be corrected. ¥e conclude that the court erred in ovei’ruling the demur
Per Curiam. — It is ordered, upon the foregoing opinion, that the judgment below be in all things reversed, at the costs of the appellees.