Harvey v. State ex rel. Town of Monticello

• Decision Date: 12 March 1884
• Docket Number: 11,219
• Citation: 94 Ind. 159
• Parties: Harvey et al. v. The State, ex rel. Town of Monticello
• Court: Indiana Supreme Court

94 Ind. 159

Harvey et al. v. The State, ex rel. Town of Monticello

No. 11,219

Supreme Court of Indiana

March 12, 1884

From the Carroll Circuit Court.

A. W Reynolds, E. B. Sellers, J. A. Stein, M. M. Sill, T. F Palmer and J. H. Wallace, for appellants.

W. E Uhl and D. Turpie, for appellee.

OPINION

Elliott J.

The bond on which the action is founded was executed by Harvey as principal, and the other appellants as sureties, to secure the faithful discharge of the duties of the office of treasurer of the town of Monticello to which Harvey had been elected. The town was the relator and charged that Harvey had at the time his term of office expired a large sum of money in his hands belonging to the town, which he refused to pay over to his successor.

The sureties pleaded, both in abatement of the action and in bar, a judgment of the Lake Circuit Court rendered against the town of Monticello and others, in a suit instituted by holders of bonds issued by the town. It is quite clear that it was not proper to plead the judgment as matter in abatement, for, if the judgment pleaded constituted any defence at all, it was in bar, and not in abatement. A judgment is properly pleaded in bar, for, if binding upon the parties, it does much more than abate the pending action; it puts an end to the controversy.

The judgment is not a bar because it does not appear to have been rendered upon the cause of action here involved, nor does it appear to have been rendered in an action between the same parties as those to the present action. The judgment pleaded was in favor of the creditors of the relator, and surely the treasurer of the relator can not take any benefit from such a judgment. If he had paid the money awarded the creditors, a very different question would have been presented, but as the question is now presented it is entirely free from difficulty, for it is plain that a town officer can not take advantage of a judgment in favor of a creditor of the town and make it available as an excuse for not paying over to his successor money belonging to the town.

The third paragraph of the answer of the sureties admits that Harvey was elected treasurer of the town of Monticello, and alleges that he executed his official bond with certain named persons as sureties; that afterwards at the June term, 1880, of the White Circuit Court, William W. McCulloch, W. J. Huff and W. L. Bushnell, sureties, petitioned the judge of that court in writing to be released from the bond; that Harvey entered an appearance to the petition, and Judson Applegate, Esq., judge pro tempore, made an order releasing the petitioning sureties; that the order was merely marked "Filed," and that no other record of the proceedings was ever made. It is further alleged that the bond sued on was executed subsequent to the order made by Mr. Applegate, and that this bond was ineffective because the original bond was still in force.

The order made by the judge pro tempore of the White Circuit Court, releasing the petitioning sureties, was not void. It was made at a regular term of court, by a judge appointed to hold term, and is, therefore, valid. The failure to make the proper record did not render the order ineffective. It had fully accomplished its purpose before the appellants executed the bond sued on. They recognized this fact by executing this bond.

We do not regard it as very important whether the order of the White Circuit Court was valid or invalid, because it was fully acquiesced in and executed by the parties interested before these appellants became sureties on the present bond. We suppose it to be perfectly clear that the original bond might, by agreement of the parties, have been superseded by a new one, and that when this took place the sureties on the second bond could not be heard to aver that the original bond was still in force. There was no reason why a new bond might not be substituted for the original one, and when it did take the place of the old one, the...