State v. Craig

• Decision Date: 22 April 1882
• Citation: 58 Iowa 238,12 N.W. 301
• Parties: STATE OF IOWA v. CRAIG AND OTHERS.
• Court: Iowa Supreme Court

58 Iowa 238

12 N.W. 301

STATE OF IOWA

v.CRAIG AND OTHERS.

Supreme Court of Iowa.

Filed April 22, 1882.

Appeal from Lee circuit court.

Action upon a bond executed to the state of Iowa by the defendant Seth H. Craig, as warden of the penitentiary located at Fort Madison. The other defendants, Mourton Case, A. C. Roberts, William G. Kent, Joseph Edwards, J. F. Edwards, H. Nelle, Thomas Smith, T. B. Kent, James Bullard, A. L. Courtwright, and William G. Allbright, signed the bond as sureties. Judgment was rendered against Craig for the sum of $8,000, which judgment is still in force and unpaid. The sureties defended upon the ground that after their signatures were obtained to the bond it was materially altered. The evidence shows without conflict that after the signatures of the seven sureties first above mentioned were obtained, one George H. Smith signed the bond as surety. After that the signatures of the other sureties were obtained. No names at that time had been inserted in the body of the bond. Before they were inserted, and before the bond was approved or offered for approval, the name of George H. Smith was erased by the drawing of two lines through it with purple ink. The erasure was made partly because Smith requested it, and partly because he refused to justify in an amount sufficiently large to be satisfactory to Craig. It does not appear that the sureties who signed the bond before Smith did had knowledge that Smith signed it until after the commencement of the action. None of the sureties consented to the erasure. Before trial upon the issue tendered by the sureties they moved that the case be transferred to the equity docket and tried as in equity. The motion does not appear to have been resisted, and was by the court sustained. Trial having been had, judgment was rendered in favor of the defendant sureties and the plaintiff appeals.Smith McPherson, Atty. Gen., and Galusha Parsons, for appellant.

Casey & Casey and W. H. Hobbs, for appellees.

ADAMS, J.

1. The appellant contends that the court erred in transferring the case to the equity docket. But it does not appear that the appellant demanded a jury trial or excepted to the ruling of the court. It is true the appellant states in its abstract that it excepted, but no record entry is set out showing such exception; and the appellees, by an amended abstract, set out a copy of the entry containing the ruling upon the motion, which does not show any exception taken. The correctness of the amended abstract is not denied, and must be taken as true. For anything that appears, then, the trial of the case as an equitable action was satisfactory to the appellant. If we were of the opinion, then, that the appellees' motion was improperly sustained, we should not be justified in reversing upon that ground.

2. Coming, then, to the merits of the case, we will first consider the liability of the sureties whose signatures were obtained subsequently to that of George H. Smith. The appellant does not deny, and cannot properly deny, that the instrument...