Neininger v. State

• Decision Date: 13 June 1893
• Citation: 34 N.E. 633,50 Ohio St. 394
• Parties: NEININGER et al. v. STATE.
• Court: Ohio Supreme Court

34 N.E. 633

50 Ohio St. 394

NEININGER et al. v. STATE.

Supreme Court of Ohio.

June 13, 1893

Error to circuit court, Belmont county.

Action on a bond by the state of Ohio against Frederick Neininger and others. Plaintiff had judgment, and defendants bring error. Affirmed.

The other facts fully appear in the following statement by WILLIAMS, J.:

Margie Coss, an unmarried woman, made complaint in writing, under oath, before F. C. Robinson, a justice of the peace of Pease township, Belmont county, charging Ado Kyne with the paternity of her illegitimate child. The accused was arrested upon a warrant issued on the complaint, and taken before the justice, who, after the examination required by the statute directed the accused to enter into a recognizance payable to the state of Ohio in the sum of $300, with sufficient surety for his appearance at the next term of the court of common pleas of that county, to answer the accusation, and abide the order of the court thereon. Frederick Neininger and John F Kyne offered themselves as sureties, and, as such, entered into a recognizance with the accused, in accordance with the provisions of the statute and the order of the justice. In entering the recognizance on his docket, where it was signed by the parties, the justice by mistake inserted the name of the complainant as Margie Kyne, instead of Margie Coss. The following is a copy of it, as it was signed:

‘ The State of Ohio, Belmont County-ss.: Be it remembered that on this 27th day of December, A. D. 1887, Frederick Neininger and John F. Kyne personally appeared before me, F. C Robinson, a justice of the peace of Pease township, in said county, and jointly and severally acknowledged themselves to owe and be indebted unto the state of Ohio, for the use and benefit of Pease township, in said county, the sum of three hundred dollars, to be levied of their goods and chattels, lands and tenements, upon this condition: That the said Ado Kyne shall personally appear before the court of common pleas to be holden in and for the county aforesaid, on the first day of the next term thereof, and continue from day to day, and then and there answer unto a complaint of bastardy made by Margie Kyne against him, and abide the order of the court thereon, then this recognizance to be void; otherwise to be and remain in full force. Ado Kyne. [Seal.] Fred. Neininger. [Seal.] John F. Kyne. [Seal.]

‘ Taken and acknowledged before me the day and year aforesaid. F. C. Robinson, Justice of the Peace.’

The accused did not appear at the next term of the court of common pleas, and the cause was tried in his absence, resulting in a verdict of guilty, upon which judgment was rendered, charging him, as the reputed father of the child, with its maintenance, in the sum of five hundred dollars, to be paid to complainant in installments as therein provided, and requiring him to give security to perform the order and judgment of the court, which he failed to do, whereupon the recognizance was forfeited. Afterwards the action below was commenced in the court of common pleas of Belmont county against the sureties to recover the amount of the recognizance. In an amended petition subsequently filed, the facts hereinbefore stated are alleged. It is also averred that the defendants intended to, and in fact did, enter into the recognizance for the appearance of the accused to answer the complaint of Margie Coss; that there was no complaint of Margie Kyne, nor such a person, when the recognizance was executed; and that the defendants, well knowing the facts, and to obtain the release of Ado Kyne from the custody under which he was then held on the complaint of Margie Coss, agreed to and did become sureties for him, on the recognizance, thereby binding themselves that he would appear in the court of common pleas, and there answer to the accusation made by Margie Coss, and perform the judgment of the court thereon; and by so becoming his sureties obtained his release from the custody under which he was then held on her complaint. The amended petition prays for the reformation of the instrument by correcting the mistake in the name of the complainant, and then for judgment upon it. The defendants filed a general demurrer to the petition, which was overruled. They then answered, denying its allegations. Upon the trial the court found for the plaintiff, decreed the reformation, and rendered judgment accordingly. That judgment was affirmed by the circuit court, and to reverse both judgments this proceeding in error is prosecuted.

Syllabus by the Court

1. A written instrument executed by a surety, which by mistake fails to express the actual agreement and intention of the parties, may be reformed upon parol proof, like other written instruments, and then enforced against the surety.

2. A recognizance conditioned that the accused in a proceeding in bastardy shall appear at the next term of the court of common pleas and answer the accusation, and abide the order of the court thereon, may be forfeited after trial and verdict of guilty if he then fail to appear and perform the order and judgment of the court.

3. There being no rule day prescribed by statute for answer to an amended petition, the time which may be allowed for filing the answer is within the discretion of the court; and when no other time is fixed by the court, setting the case for trial on a specific day is, in effect, an order that the issue be made up by that time.

James M. Rees and N. K. Kennon, for plaintiffs in error.

J. C. Heinlein and Ross J. Alexander, for defendant in error.

WILLIAMS, J., (after stating the facts.)

The principal question presented is whether a written instrument which by mistake fails to express the agreement of the parties, may be reformed, and then enforced against a surety. The plaintiffs in error content that it cannot, and for that reason they claim the court of common pleas erred in overruling their demurrer to the amended petition, and awarding the relief it demanded against them. This court in a number of decisions has strictly adhered to the rule that the liability of a surety cannot be extended by implication beyond the terms of his contract. In State v. Medary, 17 Ohio 554, it was held that the sureties on a bond conditioned for the faithful performance by the principal of his duties as a member of the board of public works were not liable for his defalcation as an acting commissioner under the appointment of the board. In McGovney v. State, 20 Ohio 93, which was an action at law on an executor's bond conditioned for the faithful administration of the estate of James Findley, the court held that the sureties were not liable for the maladministration by the executor named of the estate of Joseph Findley, and that the bond could not by parol evidence be made applicable to the estate of Joseph Findley. It was decided in the case of Myers v. Parker, 6 Ohio St. 501, that an appeal bond which recited that the appellant had taken an appeal from the judgment of the court of common pleas to the supreme court of the county, and the condition of which was that he would pay the amount of the condemnation money in the supreme court in case a decree should be entered therein in favor of the appellee, did not bind the sureties for the payment of a judgment of the district court, which at the date of the bond had superseded the supreme court. In neither of these cases, however, was the reformation of the written instrument sought, nor were the allegations necessary to entitle the parties to that remedy made by the pleadings. The same may be said of all the cases cited by counsel for the plaintiffs in error. We have been unable to find any reported decision in which the question here presented has received the consideration of this court. It is well settled that written contracts and other instruments of writing may be...