Davis v. Neighbors

• Decision Date: 11 January 1905
• Docket Number: 5,097
• Citation: 73 N.E. 151,34 Ind.App. 441
• Parties: DAVIS ET AL. v. NEIGHBORS, TRUSTEE, ET AL
• Court: Indiana Appellate Court

73 N.E. 151

34 Ind.App. 441

DAVIS ET AL. v. NEIGHBORS, TRUSTEE, ET AL

No. 5,097

Court of Appeals of Indiana

January 11, 1905

From Bartholomew Circuit Court; Hugh Wickens, Special Judge.

Action by Emma L. Neighbors, as trustee under the will of Mathias Nauman, deceased, against Fremont Davis and others. From a decree for plaintiff, defendants Fremont Davis and Allie Davis appeal.

Reversed.

James F. Cox and Clarence E. Custer, for appellants.

Marshall Hacker, Ralph H. Spaugh and W. W. Lambert, for appellees.

OPINION

COMSTOCK, C. J.

This was an action by the appellee Emma L. Neighbors against the appellants and Benjamin W. Chambers and Elmer L. Williams to recover on a promissory note executed by appellants and Benjamin W. Chambers, payable to Elmer L. Williams, who before maturity indorsed said note to appellee Emma L Neighbors, trustee; and said note was secured by an indemnifying mortgage upon certain real estate in favor of Benjamin W. Chambers, as surety. The appellants, Allie Davis and Fremont Davis, filed a joint answer, and each also filed a separate answer.

The first paragraph of each answer is a general denial. The second paragraph alleges that the property mortgaged was owned by appellants, Allie Davis and Fremont Davis, by entireties; that no part of the money for which the note was given was received by Allie Davis, and no part of the same was applied to the joint use and benefit of Allie Davis and Fremont Davis, and all of said money went to the exclusive use and benefit of said Fremont Davis, and that said Allie Davis was surety on said note.

The first paragraph of each of appellees' replies to said answers is a general denial. The second paragraph of each of said replies alleges matter in estoppel. Said matter in estoppel in each of the replies is, substantially, that appellants were estopped from proving that Allie Davis was surety on said note, because of certain acts, conversations and representations, and that at the time appellee purchased said note and mortgage, and when the same were assigned to her, she had no knowledge that appellants claimed or asserted that said note was for any other purpose than for appellants' joint use and benefit, or that appellant Allie Davis was surety on said note; that prior to the acceptance of said note by said Williams and the payment of said money by him, and for the purpose of showing and convincing said Chambers and Williams for what purpose said debt was made and contracted, and the use that was to be made of the money to be obtained upon said loan, the said defendant Allie Davis, at the instance and request and with the knowledge and procurement of her husband, said Fremont Davis, made and delivered to said defendant Benjamin W Chambers her certain affidavit as follows: "Allie Davis being duly sworn, upon her oath says that she executed the mortgage of even date herewith with her husband, Fremont Davis, on the following real estate in Bartholomew county, State of Indiana, to wit: Forty feet by parallel lines off of the south side of lot number sixteen in Hege and Hill's addition to the city of Columbus; that said real estate is held by her and her said husband as tenants by entirety; that she executed said mortgage jointly with her said husband to indemnity the mortgagee Benjamin W. Chambers, as surety for her and her said husband on two promissory notes, as follows: One to Elmer L. Williams, of date October 9, 1901, and one to George W. Ely, of date August 19, 1901, each for the sum of $ 300, and each payable one year after the date thereof, with eight per cent. interest from date until paid, without relief from valuation or appraisement laws, and with attorney's fees, and each executed by Fremont Davis and Allie Davis, husband and wife, as principal, and Benjamin W. Chambers as surety for them; and affiant says that she did not sign said notes as surety for her husband or anyone else, and the money obtained on said notes was for the joint use and benefit of her and her husband, and this mortgage is given to said Benjamin W. Chambers to secure and indemnify him as surety on said notes for her and her said husband against the payment of the same. Allie Davis."

The appellee Benjamin W. Chambers filed a cross-complaint against appellants, Fremont Davis and Allie Davis, alleging suretyship. The appellants answered by a general denial. The court found for appellee Emma L. Neighbors on her complaint, and for Benjamin W. Chambers on his cross-complaint, that appellants were principals on said note given to Elmer L. Williams, and that Benjamin W. Chambers executed said note as surety for them, and that appellants, in order to indemnify and hold said Chambers from the payment of the note, executed a mortgage on the real estate so held by them by entirety; that, after the execution of said note, Elmer L. Williams sold, assigned and transferred the same to appellee. Judgment was accordingly entered against appellants as joint principals, and against Benjamin W. Chambers as surety, and against Elmer L. Williams, as indorser, for $ 356.40.

The questions presented in this appeal depend for their solution upon the consideration of the evidence. Counsel for appellee insist that the evidence is not in the record. It is pointed out that it does not appear that the bill of exceptions containing the evidence was filed with the clerk after having been signed by the judge. The record shows that the longhand transcript of the evidence was filed in the office of the clerk on the 3d day of December, 1903; that the bill of exceptions attached to said transcript is the original bill of exceptions filed in said office on the day of December, 1903. Neither the record nor the certificate shows the bill was filed with the clerk after having been signed by the judge December 12, 1903. What purports to be the certificate of the clerk to the transcript shows no time of filing the bill of exceptions. The certificate leaves the time of such filing blank, and the attestation of the clerk contains no date.

After the cause had been submitted upon appeal, and been briefed by counsel on both sides, appellants procured a nunc pro tunc entry to be made in the court below, and the same is in the record by certiorari, showing that the said bill of exceptions was filed in the office of the clerk of said court on the 12th day of December, 1903, after the same had been approved and signed by the trial judge. Said entry was based alone upon the facts that the bill of exceptions was indorsed as follows: "Filed in open court on the 12th day of December, 1903, William F. Barrett, clerk"--supported by the affidavit of William F. Barrett, which said that when the bill of exceptions was filed on the 12th day of December, 1903, it had been approved and signed by the judge who presided in said cause; that when the bill was so filed he omitted the indorsement hereinbefore set out; that no independent entry of said filing was made; that the date of his certificate to the transcript was inadvertently omitted; and that the date, December 12, 1903, should have been written therein.

1. Appellees have separately filed cross-errors challenging the action of the court in granting the petition for a nunc pro tunc entry. In support of the cross-errors it is claimed that there was no minute nor record to authorize the amendment of the record to show that the bill of exceptions was filed with the clerk after it was signed by the judge. A court is necessarily invested with the authority to make its record speak the truth. The right is not questioned here but, rather, upon what proof such right may be...