Borgman v. State ex rel. Rodenbeck

• Decision Date: 13 January 1937
• Docket Number: 26673.
• Citation: 5 N.E.2d 522,211 Ind. 395
• Parties: BORGMAN et al. v. STATE ex rel. RODENBECK.
• Court: Indiana Supreme Court

5 N.E.2d 522

211 Ind. 395

BORGMAN et al. v. STATE ex rel. RODENBECK.

No. 26673.

Supreme Court of Indiana

January 13, 1937

Appeal from Circuit Court, Huntington County Sumner Kenner, judge.

J H. & A. L. Aiken and Harry H. Hilgemann, all of Fort Wayne, for appellants.

Edw B. Henslee, Wm. E. Wybourn, and Albert W. Ewbank, all of Fort Wayne, for appellee.

FANSLER Judge.

Appellee began this action against the treasurer of Allen county seeking a mandate to compel the treasurer to issue warrants in the sum of $3,600 to reimburse relator under the provisions of chapter 78 of the Acts of 1933 (Acts 1933, p. 488), providing for the relief of uncompensated freehold sureties on public depository bonds. There was judgment for appellee as prayed.

Error is assigned upon the overruling of a motion for a new trial.

There is no substantial conflict in the evidence, and the only question for decision is whether, under the facts, the judgment is correct.

It appears that relator was one of the partners in the private unincorporated Huntertown Bank; that the bank became a public depository for Perry and Eel River townships, in Allen county, and executed the usual form depository bonds, which were signed by the bank as principal, and by the relator and other stockholders as sureties. The bank became insolvent, and was put into liquidation. Actions were brought by the boards of finance of the townships against the bank, the relator, and the other stockholders who signed the bonds. There were judgments, and on execution the sheriff levied on property of the relator, which was sold at sheriff's sale, and $3,600 of the proceeds paid to the two townships, which were the judgment creditors.

It is appellee's contention that the judgments against the relator are upon his obligation as surety on the bonds; that he was an uncompensated surety, and is entitled therefore to recover the amounts collected from him under the judgments.

The complaints in the actions by the boards of finance of the townships alleged that the defendant Huntertown Bank tendered a bid as a public depository, and executed its personal bonds, conditioned as provided by statute, to the effect that it would faithfully perform all of its duties, and that it would account for and pay any funds deposited, and interest thereon; that for more than a year the bank had moneys of the townships, which it failed, neglected, and refused to pay 'that by reason thereof said bond has become due and payable and all of said defendants have become liable thereon for the full amount of said deposits.' The bonds were made exhibits to the complaints. The defendants were summoned and appeared. Thereafter the cases were dismissed as to the Huntertown Bank, and the defendants were defaulted for failure to answer. The causes were submitted for trial, evidence was heard, and there were findings and judgments that the plaintiffs recover of the defendants the sums due and costs. There is nothing in the judgments indicating whether the recovery against the defendants is as principals or sureties, but it is clear that, as partners in the bank, they were liable as principals, and recovery might have been had against them as such if any distinction had been made in the original actions as to principals and sureties. It is true that the actions were dismissed as to the bank, but the actions against the bank were merely actions against the remaining defendants who were partners. Under the banking st...