Jones v. Swift

• Citation: 94 Ind. 516
• Decision Date: 17 April 1884
• Docket Number: 10,893
• Parties: Jones v. Swift et al., Executors
• Court: Supreme Court of Indiana

94 Ind. 516

Jones v. Swift et al., Executors

No. 10,893

Supreme Court of Indiana

April 17, 1884

From the Fayette Circuit Court.

G. C Florea and C. Roehl, for appellant.

R Conner, B. F. Claypool and J. H. Claypool, for appellees.

OPINION

Colerick C.

No question involving the sufficiency of any of the pleadings in this action has been presented to us, and no recital of their averments is necessary to be made in determining the questions that have been submitted for our consideration. The issues formed by the pleadings were tried by the court, who at the request of the parties, made a special finding of the facts in the case, and its conclusion of law thereon, as follows:

"1st. That on the 20th day of June, 1877, said John Swift recovered a judgment in the Fayette Circuit Court against one Thomas Monger, as principal, and against William Brumfield, John G. Diehlman and Jeptha Steele, as sureties for said Thomas Monger, for the sum of $ 1,642.42.

"2d. That on the 16th day of July, 1877, an execution was issued on said judgment, and placed in the hands of said sheriff of Fayette county for service, etc.; and on said execution replevin bail was regularly entered and signed by Lewis and George H. Monger, on the 20th day of July, 1877, and on said day said execution was by said sheriff returned with his doings thereon.

"3d. That on the margin of said judgment mentioned in finding number one above, there was entered the following release, to wit: 'I hereby release Jeptha Steele, and his lands, from all liability on account of this judgment.

"'August 24th, 1877.

John Swift.

"'Attest: J. G. F. Leach, Clerk.'

"And below, and attached to said judgment, the following was entered, to wit: 'I, Joseph B. Jones, acknowledge myself replevin bail for the payment of the above judgment, interest and costs, for the time allowed by law for the stay of execution, together with Lewis Monger and George H. Monger, who have already stayed the same.

"'August 24th, 1877.

J. B. Jones.'

"4th. That said entry of release of said Steele by said Swift, and said entry of replevin bail by said Joseph B. Jones, were concurrent acts, and were made under the following circumstances, to wit: Steele desired to be released from said judgment, and Thomas T. Monger, the principal in the original judgment above mentioned, desired to have him released. Said Monger, Swift, Jones, and L. W. Florea, attorney for Steele, were in the clerk's office of said Fayette Circuit Court, when said Monger requested Swift to release said Steele from said judgment. This he agreed to do provided Brumfield and Diehlman were consenting thereto, and said Jones would become such replevin bail thereon, and Jones consented to become such replevin bail, if said Brumfield and Diehlman were consenting to such release, and thereupon said Monger was asked if said Brumfield and Diehlman were so consenting to said release, and he answered that they were, and immediately thereafter said release was signed by said Swift, and said replevin bail was signed by said Jones.

"5th. That said William Brumfield and Jos. G. Diehlman had not consented, and did not consent, to said release of said Steele before and at the time of the entry of the same, or before or at the time of the entry of said replevin bail by said Jones.

"6th. That afterwards, to wit, on the 10th day of August, 1878, said Swift procured the issuance of an execution on said judgment, which execution was placed in the hands of the then sheriff of said county, and thereupon, on the 17th day of October, 1878, said Brumfield and Diehlman filed their complaint in said Fayette Circuit Court against said sheriff, John Swift, Lewis Monger, George H. Monger and Joseph B. Jones, praying to be released from further liability on said judgment, and that the defendants thereto be enjoined from proceeding on said judgment and execution against the property of said Brumfield and Diehlman, and charging in said complaint the release of said Steele without their knowledge and consent, etc., and that said Joseph B. Jones, on the 24th day of August, 1877, with full knowledge of said release, entered and signed the replevin bail heretofore set out; that all the defendants to said complaint were duly summoned, and all suffered default except said Jones, who did not answer the same, but filed the original cross complaint herein; that on said default, and upon trial had, judgment was, on the 10th day of the October term, 1878, of said Fayette Circuit Court, duly rendered in favor of said plaintiffs Brumfield and Diehlman, releasing them from liability on account of said original judgment, and enjoining said defendants from further proceeding to collect the same from the property of the plaintiffs Brumfield and Diehlman.

"From these facts I concluded that Joseph B. Jones, the plaintiff in this cross action, is not released on the replevin bail on said judgment, and, therefore, find for the Swifts, the defendants in this cross action.

"Samuel A. Bonner,

"Judge F. C. C."

To which findings of fact and conclusion of law the appellant objected and excepted, and also objected to the same, because they were not made and rendered within sixty days from the time said cause was taken under advisement by the court, which objection was overruled by the court, and to which ruling the appellant excepted, and thereupon filed his motion for a new trial, which was overruled, and judgment was then rendered in favor of the appellees, from which the appellant appeals.

The errors assigned are:

1. That the special findings are contrary to the evidence.

2. That the judgment and conclusion of law upon the facts found are contrary to law.

3. That the court erred in its conclusion of law upon the facts found.

4. That the court erred in overruling the motion for a new trial.

5. That the court erred in making, filing and recording its special finding of facts and conclusion of law thereon, over the objection of the appellant, after sixty days from the time the cause was taken under advisement by the court.

6. That the court erred in rendering judgment for the appellees over the objection of the appellant.

It is quite evident from the facts found by the court, that the appellant was induced to become such replevin bail by reason of the representation of Monger, the principal judgment defendant, and at whose instance the appellant became replevin bail, that Brumfield and Diehlman were consenting to the release of Steele, one of the judgment defendants. The representation so made was false and fraudulent. But it was not found by the court, nor is it claimed by the appellant that there was any evidence showing, or tending to show, that Swift, the judgment plaintiff, was a party to, or participated in any manner in, the commission of the fraud.

Where one is induced to become replevin bail by the false or fraudulent representations of the judgment defendant, he is held bound as such replevin bail, unless the judgment plaintiff was a party to, or had knowledge of, the fraud. Lepper v. Nuttman, 35 Ind. 384; Vincennes Nat'l Bank v. Cockrum, 64 Ind. 229. In Lepper v. Nuttman, supra, which was an action to revive a judgment that had been rendered against one Schmidt, Lepper, who was replevin bail thereon, sought, by his answer, to be relieved from liability, by averring therein that he had been induced to become such replevin bail through the false representations of Schmidt. It was held by this court that the answer was insufficient, because it did not in any way connect the judgment plaintiff with the alleged false representations. The court said: "Schmidt was the judgment defendant, and it was through his representations, as the answer alleges, that the appellant became replevin bail. Unless the representations were made by Nuttman, the judgment plaintiff, or by some one for him and with his consent or procurement, he can not be affected by them."

If the principal, by fraud, induces the surety to become bound, but the obligee has no notice thereof, such fraud, as a general rule, will be no defence to the surety. Brandt Suretyship and Guaranty, section 353. The fraud which will vitiate a contract of suretyship must be one to which the person benefited by the contract is a party, or, at least, of which he had notice. Baylies Sureties and Guarantors, 214...