Rohan v. Gehring

• Decision Date: 08 December 1922
• Docket Number: No. 11394.,11394.
• Parties: ROHAN et al. v. GEHRING.
• Court: Indiana Appellate Court

80 Ind.App. 46

137 N.E. 288

ROHAN et al.

v.GEHRING.

No. 11394.^*

Appellate Court of Indiana, Division No. 1.

Dec. 8, 1922.

Appeal from Superior Court, Marion County; Solon J. Carter, Judge.

Action by Caroline Gehring and others against David Rohan and others. Judgment for plaintiff named. A new trial was denied, and defendant named appeals. Affirmed.

White & Jones, of Indianapolis, for appellant.

Joseph P. Turk and Frank Mellis, both of Indianapolis, for appellee.

ENLOE, J.

In November, 1916, the appellee, Caroline Gehring, then Caroline Lasly, entered into a contract with one Applegate for the construction of a dwelling house, for a sum named, and upon terms and conditions set forth in said contract. It was understood by both said parties that the money necessary to pay for said work to be done under said contract was to be procured by said Gehring from the Railroad Men's Building & Savings Association, one of the named appellees herein, and to secure the said Gehring and said savings association against any loss in the matter the said contractor, Applegate, executed the bond in question, with the appellant, David Rohan as surety thereon. This action was brought by the obligees named in said bond, to recover damages on account of the alleged breach thereof by Applegate, in that he failed to pay for certain materials, and to keep said building and premises free from any and all liens.

The issues being closed, the cause was submitted to a jury, which found in favor of appellee, Gehring, and assessed her damages at $860. The appellant Rohan duly filed his motion for a new trial, which being overruled, he now prosecutes this appeal. The errors assigned and presented are: (a) Overruling motion to make complaint more specific; and (b), overruling motion for a new trial.

[1] As to the first of the above alleged errors, the appellant has made no showing that he was in any way surprised or harmed in the trial of the case as a result of the ruling complained of, and therefore has shown no error in this matter. Union Traction Co. v. City of Muncie (Ind. App.) 133 N. E. 160, and authorities there cited.

Appellant next insists that the court erred in overruling his motion for a new trial. He insists that, as the action was upon a bond by which the makers thereof were bound to the obligees therein named jointly, there must be a recovery by both the named obligees, and that there can be no recovery by one only of such named obligees.

An examination of the section of the statute cited and relied upon by appellant discloses that it relates to “pleading”-to the persons who should be joined as plaintiffs in a joint action. The authorities cited by appellant also relate to the same subject, and are therefore not in point. Section 594, Burns' R. S. 1914, expressly provides that-

“Judgment may be given for or against one or more of several plaintiffs, and for or against one or...