Leaman v. Sample

• Court: Indiana Supreme Court
• Writing for the Court: Bicknell, C. C.
• Citation: Leaman v. Sample, 91 Ind. 236 (Ind. 1883)
• Decision Date: 03 November 1883
• Docket Number: 10,225
• Parties: Leaman v. Sample

91 Ind. 236

Leaman v. Sample

No. 10,225

Supreme Court of Indiana

November 3, 1883

From the Hancock Circuit Court.

The judgment is reversed, at the costs of the appellee, and this cause is remanded, with instructions to overrule the demurrer to the complaint.

W. R Hough and W. W. Cook, for appellant.

D. S Gooding and M. B. Gooding, for appellee.

OPINION

Bicknell C. C.

This was a complaint to review a judgment for error of law apparent in the record.

John N Leaman sued George W. Sample, alleging in his complaint, that he and Sample had been sureties for Isaac Leaman, and that he had been compelled to pay the entire debt; he sought to recover from Sample one-half of the amount paid.

Sample answered in two paragraphs:

1. The general denial. 2. That the matters alleged in said complaint had been fully heard, tried, adjudicated and determined between the parties at the March term, 1876, of the Hancock Circuit Court.

A demurrer to said second defence was overruled; a reply was filed in denial; the issues were tried by the court, who, on request, made a special finding of facts and stated conclusions of law thereon, as follows:

1. Notes were executed by Isaac Leaman as principal and said John N. Leaman and George W. Sample as sureties; judgment was rendered thereon against all of them, and John N. Leaman was compelled to pay it.

2. In the suit on said notes Sample answered separately, admitting the execution of the notes by him, and averring that he "signed the same as surety and not otherwise," and praying that there be no stay of execution on the impending judgment, unless the replevin bail would agree to pay the same on failure of the other defendants to pay it.

3. All of said defendants answered jointly that Isaac Leaman was principal and John N. Leaman and George W. Sample were sureties on said notes, and that both of said notes were composed of illegal and usurious interest, for which they demanded judgment.

4. The plaintiff in said suit replied in denial of each of said special defences.

5. Neither Isaac Leaman nor John N. Leaman filed a demurrer or any other pleading to said separate answer of Sample alleging his suretyship, nor was any objection made to said separate answer, but the cause was tried by the court upon the issues joined; the court found for the plaintiff and assessed his damages at $ 264.57, and also found that George W. Sample was only surety, and rendered judgment against the defendants, with a direction that execution thereon be first levied of the property of the Leamans, and that there be no stay of execution, unless the replevin bail should undertake specially to pay the judgment, in case the amount thereof could not be levied of the principal defendants.

6. No objection or exception to the said finding and judgment was taken by any of the parties.

Upon the foregoing facts the court stated the following conclusions of law:

"Said finding and judgment of the Hancock Circuit Court constitute an adjudication between the parties to this suit of the matters and things involved herein, and it is final and conclusive upon them, as to said question of suretyship, and the law is with the defendant."

The court found for the defendant. The plaintiff John N. Leaman excepted to the conclusions of law. Judgment was rendered upon the finding against the plaintiff, who now demands a review of that judgment, and alleges in his complaint for review the following errors of law as apparent upon the record:

1. This amounts to nothing, and need not be further considered. It alleges as error of law that the defendant's second paragraph of answer was insufficient.

2. The court erred in overruling the plaintiff's demurrer to the second paragraph of the defendant's answer filed in said cause.

3. The court erred in each of the conclusions of law drawn from the facts as specially found in said cause:

4. The court erred in its decision upon the questions of law involved in said cause and the trial thereof.

This fourth specification amounts to nothing; the only errors of law properly charged in the complaint for review are the second and third.

The defendant Sample filed a demurrer to said complaint for review for the following causes:

1. Because the complaint does not state facts sufficient to constitute a cause of action.

2. Because there is a defect of parties defendants, in this, that Isaac Leaman should have been made a party defendant.

This demurrer was sustained by the court, and the plaintiff declining to amend his complaint for review, judgment was rendered against him on the demurrer. He appealed. The errors assigned are as follows:

1. Sustaining the demurrer to the complaint.

2. Rendering judgment in favor of the appellee.

This second assignment of error presents no question. Buskirk Prac. 112, and cases there cited.

As to the first error assigned, the complaint for review was not defective for want of parties. Isaac Leaman was not a party to the proceeding sought to be...