State ex rel. Cecil v. Christian
| Decision Date | 03 June 1897 |
| Docket Number | 2,170 |
| Citation | 47 N.E. 395,18 Ind.App. 11 |
| Parties | STATE, EX REL. CECIL, BY NEXT FRIEND, v. CHRISTIAN ET AL |
| Court | Indiana Appellate Court |
From the Hamilton Circuit Court.
Reversed.
William Booth, F. E. Gavin, C. F. Coffin and T. P. Davis, for appellant.
Fertig & Alexander and Christian & Christian, for appellees.
Appellant brought this action upon the bond of the clerk of a circuit court.
In the special finding, the court found substantially the following facts: On the 27th day of September. 1883, the appellee, James R. Christian, was elected and qualified and acting clerk of the Hamilton Circuit Court of Hamilton county; that he executed his official bond as such clerk, with his co-appellees as sureties thereon; that the relatrix, May Cecil, is the bastard child of Martha Knapp, and is now fifteen years old that in June, 1881, in the Delaware Circuit Court, the said Martha Knapp instituted a bastardy proceeding against one Samuel K. Cecil, charging him with the paternity of the said relatrix, May Cecil; that in said suit the said Samuel K Cecil was adjudged to be the father of the said May Cecil, and it was further adjudged that he pay, for the support and maintenance of said child, the sum of $ 400.00. The judgment further provided that said sum might be paid in installments, and the judgment contained the following: "It is further considered by the court that said judgment or the several installments thereof, when paid, be paid to , who is hereby appointed and ordered to qualify and give bond as guardian of such bastard child." The court further found that after the rendition of this judgment, one Archibald Knapp made verbal application to the appellee, Christian, as clerk of the Hamilton Circuit Court, for letters of guardianship upon the person and estate of the said May Cecil, and filed with the clerk an "informal" bond; and that thereupon, and while said Hamilton Circuit Court was then in session in regular term, the said Christian issued to said Archibald Knapp, a certificate under the seal of the Hamilton Circuit Court, which certificate recited that he (Christian), as clerk of said court, certified that Archibald Knapp had been appointed guardian of the person and property of May Cecil, which certificate the said Christian delivered to said Archibald Knapp. The court further found that said Knapp was never appointed as guardian of said May Cecil by the Hamilton Circuit Court, nor by any other lawful authority, that, after receiving said certificate, said Knapp presented the same to the clerk of the Delaware Circuit Court, and demanded the money in the hands of said clerk which had theretofore been paid into his hands upon the judgment in said bastardy proceedings, and that said clerk thereupon took the certificate from said Knapp, recorded the same upon the order book of said court, and paid to the said Knapp the sum of $ 333.00, being the amount paid to said clerk upon the said judgment in said bastardy proceedings, $ 215.00 of said amount having been paid on the 28th of September, 1883, and $ 118.00 on the 4th day of June, 1884. The court further found that said Knapp applied $ 100.00 of said moneys to the support and maintenance of the said May Cecil, and that the residue of the money he converted to his own use, and that he was insolvent when said certificate was issued to him, and that he has since been, and still is, so insolvent; and that the pretended bond filed by said Knapp after taking out of the clerk's office of Hamilton county said certificate, was worthless and unavailing to the relatrix; that one of the pretended sureties was at the time wholly insolvent, and the other a married woman, and that relatrix has never realized anything whatever on account of said bond. The court further found that on the 17th day of January, 1885, the said Archibald Knapp endorsed on the margin of the record of the judgment of the Delaware Circuit Court against said Samuel K. Cecil, a written assignment of the same to one William Abbott, which said written assignment was signed by said Knapp, as guardian of Martha Knapp, and that Knapp was paid by said Abbott the sum of $ 111.32 for making said assignment; and that the clerk of the Delaware Circuit Court on the 2d day of June, 1885, paid to said Abbott, $ 124.00 of moneys paid to him as such clerk on said judgment. The court further found that Archibald Knapp never at any time had the care and custody of the said bastard child, but the mother of said bastard child, the relatrix in said bastardy proceeding, at all times had the custody, care, and maintenance of said child, and that when said certificate of appointment as guardian of said child was so issued by appellee, Christian, as heretofore found, said child resided with its mother in Delaware county. Upon these facts the court stated its conclusion of law "that the plaintiffs have no right to recover judgment against the defendants."
The only question argued by counsel is the correctness of the court's conclusions of law on...
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