State ex rel. Coppage v. Reichard

• Citation: 109 N.E. 438,59 Ind.App. 338
• Decision Date: 23 June 1915
• Docket Number: No. 8487.,8487.
• Parties: STATE ex rel. COPPAGE v. REICHARD et al.
• Court: Court of Appeals of Indiana

59 Ind.App. 338

109 N.E. 438

STATE ex rel. COPPAGE

v.REICHARD et al.

No. 8487.

Appellate Court of Indiana, Division No. 2.

June 23, 1915.

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Action by the State, on the relation of Lewellyn J. Coppage, against John W. Reichard and others. From a judgment in his favor, plaintiff appeals. Affirmed.L. J. Coppage, of Crawfordsville, for appellant. M. W. Bruner, of Crawfordsville, for appellees.

CALDWELL, J.

Stated generally, the facts in this cause are to the effect that March 16, 1908, Sarah J. Weaver applied to the relator at Crawfordsville for a loan of $100. Relator, as a condition to making the loan, required surety, whereupon Margaret J. Weaver was tendered in that capacity. Margaret not being present, relator prepared a promissory note in said sum, an affidavit as to the solvency of Margaret, and a certificate that she had signed the note, and intrusted these papers to Sarah to procure their execution. Sarah thereupon went before appellee Reichard, who was a justice of the peace, and resided in a small town near the home of Margaret, and, impersonating Margaret, signed and swore to the affidavit in Margaret's name. Reichard signed his name as a justice of the peace to the jurat that relator had written at the bottom of the affidavit. The certificate was apparently written on the same paper as the affidavit, and below it. Although Sarah apparently did not exhibit the note to Reichard, he signed the certificate also as a justice of the peace, and affixed his official seal to it. The certificate was as follows:

“And I further certify that the above-named Margaret Weaver in my presence signed her name to a note of this date executed to Lewellyn J. Coppage by the above-named Sarah J. Weaver, for the sum of one hundred dollars, due six months from date. John W. Reichard, Justice of the Peace.”

Thereafter Sarah presented to relator the affidavit and certificate and the note bearing her name and also Margaret's name as makers, and relator thereupon made the loan. The note proved to be uncollectible by reason of Sarah's insolvency, and the fact that Margaret had not signed it. It is claimed that Reichard acted carelessly rather than corruptly in the transaction. Under such circumstances, this action was brought against appellee on the official bond of Reichard, the other appellees being sureties on the bond. The bond, a copy of which is made a part of the complaint, is conditioned as required by the statute for the faithful discharge of the duties of his office by Reichard, and for the payment to the proper persons of all moneys that might come into his hands as such justice of the peace. It is conceded that the facts stated in the affidavit are true, and that relator was not harmed by Sarah's execution of it in the name of Margaret, and that that instrument is unimportant in the further consideration of this appeal. Appellant's relator expressly states that he relies exclusively on the breach declared on in the complaint respecting the making of the certificate by Reichard under the circumstances. Appellees answered in three paragraphs. The second was a general denial. Appellant's demurrer was sustained to the third and overruled to the first, to which a reply in general denial was filed. A trial resulted in a verdict and judgment in favor of appellant for $25, from which this appeal is prosecuted. Error is assigned on the overruling of the demurrer to the first paragraph of answer, and on the overruling of the motion for a new trial.

The first paragraph of answer sets out facts specifically respecting the preparing of said papers by the relator, and the circumstances attending their execution. It was the pleader's purpose to allege facts in said paragraph from which it would follow that the relator was guilty of negligence, by reason of the statements that he included in the papers, and that Reichard was free from fault in permitting them to be executed by Sarah impersonating Margaret. The argument that said paragraph is insufficient is based on the fact, however, that it contains an allegation in substance that Sarah did not have the note with her at Reichard's office, and that in the transaction of executing the affidavit and the certificate, Reichard did not see the note referred to in the certificate. It is argued that such allegation admits or affirms as true the material averment of the complaint respecting the breach of the conditions of said bond, and that as a consequence the court erred in overruling the demurrer to that paragraph.

[1] The complaint is before us, and we are confronted with the question of whether it is our duty to consider its sufficiency in reviewing the ruling of the trial court on the demurrer to said paragraph of answer. The appellant was plaintiff below, and assigns error and seeks a reversal here by reason of the adverse ruling on said demurrer. The answer is directed to the complaint. If an appealing plaintiff's complaint fails substantially and fundamentally to state a cause of action, he has in fact no meritorious standing in court, and no reason occurs to us why he should be heard to complain respecting a ruling against him on a demurrer to his answer.To this effect is State ex rel. v. State Board, etc., 173 Ind. 706, on page 710, 91 N. E. 338, 339, where the court say:

“As the alternative writ was insufficient, it is immaterial whether the second and third paragraphs of answer thereto were good or bad, for the reason that it is settled law in this state that a bad answer is good *** for a bad complaint, and there can be no reversal of a judgment for error in overruling a demurrer to a bad answer if the complaint is insufficient as against a demurrer for the want of facts. *** It follows that the demurrer to said answer should have been carried back and sustained to the alternative writ.”

See, also, City v. Hamling, 172 Ind. 645, 648, 89 N. E. 308;State ex rel. Mayfield v. Myers, 100 Ind. 487;Alexander v. Spaulding, 160 Ind. 176, 66 N. E. 694;Alkire v. Alkire, 134 Ind. 350, 355, 32 N. E. 571; Zenor v. Pryor, 106 N. E. 740, 746.

In neither of the cases above cited were cross-errors assigned. In Gould v. Steyer, 75 Ind. 50, where defendant appellee assigned cross-errors on the sustaining of a demurrer to a paragraph of answer, and for failure to carry such demurrer back to the complaint, the court say:

“If the complaint failed to show a sufficient cause of action, the demurrer to the answer reached back to the complaint, and should have been sustained as to it, and not as to the answer. *** Such a demurrer will search the record and will test the sufficiency of the complaint, even without an assignment of cross-errors.”

The decision is based on Ætna Co. v. Baker, 71 Ind. 102. We conclude that it is our duty to inquire into the sufficiency of the complaint.

[2][3][4] As we have said, appellant concedes that the breach of the bond relied on is the making of said certificate under the circumstances. The question then confronts us of whether the making of such certificate was an official act or the...