State ex rel. Thornburg v. Fletcher
| Citation | 28 N.E. 111,1 Ind.App. 581 |
| Decision Date | 09 June 1891 |
| Docket Number | 238 |
| Parties | THE STATE, EX REL. THORNBURG, v. FLETCHER ET AL |
| Court | Court of Appeals of Indiana |
From the Delaware Circuit Court.
Judgment affirmed, with costs.
J. W Ryan, for appellant.
R. S Gregory, A. C. Silverburg and J. N. Templer, for appellees.
The appellant commenced this action against the appellees on a recognizance bond given in a bastardy proceeding by Samuel V. Fletcher as principal, and David Fletcher as surety.
The complaint alleged that there was pending for trial in the Delaware Circuit Court the suit of the State, on the relation of India V. Thornburg, against Samuel V. Fletcher, on a charge of bastardy; that at the November term, 1887, of said court, on the defendant's motion, a continuance of said cause was had until the next ensuing term of said court, and to that end the recognizance bond sued on was required of the said defendant by the court, and was entered into by him with the other defendant as his surety; that the cause was duly tried in the December term of said court, resulting in a verdict against the defendant therein, followed by a judgment against him by the court, which he elected not to pay, and went to jail; and that both of said defendants had made default in the conditions of said bond, in that neither of them had paid or replevied said judgment or any part thereof, nor paid to said plaintiff or said relatrix any part thereof, etc.
The defendants filed separate answers to the complaint. A demurrer was sustained to the answer of Samuel V. Fletcher. The cause was afterwards dismissed as to him, and for that reason his connection with the case need not be further noticed.
The counsel for the appellant limits his argument to the alleged error in overruling the demurrer to the fourth paragraph of the separate answer of the appellee David Fletcher.
This answer alleged that at the January term, 1888, of said court, in which said cause was pending, and under which recognizance bond the principal therein, Samuel V. Fletcher, was to appear, he did appear in his own proper person, to, and he did then and there answer to, the complaint in bastardy therein pending against him in said bastardy suit, in the complaint mentioned; and that he did not, at any time during said term of said court, depart from said court without the leave and permission of said court; that during said term of said court said bastardy suit was finally tried before said court and a jury, and the said Samuel V. Fletcher attended said trial in his own proper person, and did then and there answer said complaint in bastardy and defend against said suit, but without avail; that, upon the finding and return of the verdict against him therein, he did prepare, file, and submit his motion and causes for a new trial of said cause, which was overruled, and the court thereupon rendered final judgment upon said verdict against said defendant, Samuel V. Fletcher; that the appellee David Fletcher then and there, in his capacity as surety and recognizor of the said Samuel V. Fletcher, in said recognizance and bond, produced the body of his principal, the said Samuel V. Fletcher, in open court, and before the judge of said court, to be dealt with in said bastardy suit according to law, and the said Samuel V. Fletcher, being then and there personally in and before said court, was required by said court to pay or replevy said judgment in said bastardy suit, and failing and refusing to pay or replevy said judgment, or any part thereof, thereupon said court committed him to the jail of said county of Delaware for his default in failing and refusing to pay or replevy said judgment; and that said Samuel V. Fletcher was imprisoned in the jail of said county under the order of said court, and was so confined and imprisoned under said commitment when this suit commenced, and when said answer was filed; that at no time was any forfeiture declared of said recognizance and bond, nor was any default taken or entered thereon against the recognizors, or either of them, in said bastardy suit. Wherefore, etc.
The counsel for the appellant contends that the answer was bad because the bond signed by the appellee as surety for the principal was an obligation to pay, or cause to be paid, or replevied, any judgment that might be rendered against his principal, and that, although the principal appeared and answered the complaint, was in court at the trial of the cause, and at the time when judgment was pronounced, and was committed to jail for failing and refusing to pay or replevy the judgment, such facts would not discharge the surety on the bond, and that the surety could only be discharged by the judgment being paid or replevied. We can not concur in this view of the law.
Section 981, R. S. 1881, makes provision for the bond to be given upon arrest and trial before a justice when the defendant is adjudged to be the father of the child, and is in custody and provides that such bond shall be conditioned that the principal shall appear at the next term of the circuit court,...
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