State ex rel. Parks v. Hughes

• Decision Date: 15 February 1898
• Docket Number: 2,331
• Citation: 49 N.E. 393,19 Ind.App. 266
• Parties: STATE, EX REL. PARKS, v. HUGHES ET AL
• Court: Indiana Appellate Court

49 N.E. 393

19 Ind.App. 266

STATE, EX REL. PARKS, v. HUGHES ET AL

No. 2,331

Court of Appeals of Indiana

February 15, 1898

From the Crawford Circuit Court.

Affirmed.

N. R Peckinpaugh and H. M. Peckingpaugh, for appellant.

John H Weathers, for appellees.

OPINION

BLACK J.

This was an action upon the official bond of the appelleeJames A. Hughes as sheriff of Crawford county, for a false return of a summons.By way of showing the officer's default, it was stated in the complaint, that on the 20th of September, 1893, one Samuel M. Emerson filed in the Dearborn Circuit Court his complaint against the relator, John A. Parks, and one Thomas Watts, as indorsers and assignors of a promissory note made by one James Billingsley, on the 30th of August, 1886, to said Parks and Watts, for the sum of one hundred dollars, payable ninety days after date, negotiable and payable at the Aurora National Bank, Aurora, Indiana, and by said payees indorsed and assigned to said Emerson; that thereupon a summons was duly issued for the relator, Parks, directed to the sheriff of Crawford county, commanding, etc.; that this summons, on the 23d of September, 1893, was duly placed in the hands of said sheriff, etc.; that on the 27th day of September, 1893, he returned the writ with the following indorsement thereon:

"This summons came to hand 23d day of September, 1893.Served by leaving a true copy at his last and usual place of residence, this 27th day of September, 1893."

It is alleged that this return was false; that the sheriff did not serve the summons or cause it to be served upon the relator by leaving a copy thereof at his last and usual place of residence, nor did he serve the summons or cause it to be served upon the relator in any manner, but wholly failed and neglected so to do.It is alleged that by reason of said return so falsely made, the plaintiff in said suit was enabled to recover and did, on the 10th day of October, 1893, recover, in said Dearborn Circuit Court, judgment against the relator in the sum of, etc.

It is further alleged, that at the time of the institution of said suit and the rendition of said judgment, the relator was not liable upon said note in any sense whatever; that he had a valid subsisting defense thereto, which he could have and would have successfully interposed and made had he had any notice whatever of the pendency of said action; that the note indorsed and assigned to the plaintiff in that suit was so indorsed and assigned by said payees thereof before its maturity; that it was made negotiable and payable in bank; and that at the time of the indorsement and assignment thereof, and at the date of its maturity and for more than one year thereafter, the maker was solvent and able to pay it.The complaint also showed the issue of execution on said judgment, and alleged that the relator was compelled to pay and satisfy the judgment, etc.; and that by reason of the failure and neglect to serve the summons, and by reason of the false return, the relator lost his remedy and right of defense, and suffered thereby damages, etc.

There was an answer in denial, and upon trial there was a verdict for the appellees.The overruling of appellant's motion for a new trial is assigned as error.It is urged in argument that the verdict was not sustained by sufficient evidence.

We think counsel for the appellant are correct in their assertion that the evidence shows the note sued on by Emerson was indorsed to him before its maturity.Being made payable in a bank in this State, it was governed by the law merchant.The maker, Billingsley, had died, about three years before suit was brought on the note.It is contended that the evidence established the allegation of the complaint, that at the time of the maturity of the note and for a period thereafter, the maker was solvent.The supposed defense which it is claimed could have been made by the relator in the action upon the note would have been based upon the failure of the indorsee, Emerson, to give the relator notice of the nonpayment of the note at its maturity and upon the solvency of the maker, Billingsley, for a considerable period afterward.It is said by counsel for appellant, that Emerson, as assignee and holder of this note, was in duty bound to present the same for payment at maturity, and upon failure of Billingsley to pay, it was the holder's duty to notify the indorsers, the relator, Parks, and Watts, of such failure, and to proceed within a reasonable time to enforce payment thereof by suit against the maker; and that his failure so to do was such negligence on his part as relieved the indorsers and assignors from liability thereon, unless it is shown that a suit against the maker would have been unavailing.

The note in question, in the body thereof, contained the following: "The drawers and indorsers severally waive presentment for payment, protest and notice of protest and nonpayment of this note."It is very well settled that the right of the indorser of a promissory note governed by the law merchant to require presentment for payment and notice of nonpayment may be thus waived.See4 Am. and Eng Ency. of Law (2d ed.),...