Supreme Council of Catholic Benevolent Legion v. Boyle
| Decision Date | 15 May 1896 |
| Docket Number | 1,690 |
| Citation | 44 N.E. 56,15 Ind.App. 342 |
| Parties | SUPREME COUNCIL OF THE CATHOLIC BENEVOLENT LEGION ET AL. v. BOYLE |
| Court | Indiana Appellate Court |
From the Allen Circuit Court.
Judgment reversed, with instructions to sustain the demurrer to the complaint, with leave to amend.
Breen & Morris, for appellants.
W Leonard, E. Leonard, H. Colerick and J. E. K. France, for appellee.
Appellee recovered judgment against appellants upon an appeal bond.
It is averred, in the complaint, that the Supreme Council of the Catholic Benevolent Legion, was a fraternal organization incorporated under the laws of New York, with branch or subordinate councils in various places; that in 1886, St. Julien Council No. 89 was established at Ft. Wayne, Indiana, and of this council one William Boyle became a member, and was thereby entitled to have $ 2,000.00 benefit paid, upon his death, to the appellee, his widow; that said William Boyle died in 1891, and suit was commenced upon the beneficiary certificate, and judgment recovered thereon by appellee, in the Allen superior court, from which the cause was appealed to this court, and here affirmed (Supreme Council, etc., v. Boyle, 10 Ind.App. 301, 37 N.E. 1105); that the bond sued on was executed by the principal defendant as the appeal bond therein, and that the judgment is wholly due and unpaid.
Process was issued to Allen county for the Supreme Council, and returned served "by readind to John Daily, who is the president, and Owen Barry, who is the secretary, and Joseph J. Besson, who is the treasurer, of the St. Julien Council No. 89, who are the agents of the defendants, the Supreme Council Catholic Benevolent Legion, no other or higher officer of said Supreme Council of the Catholic Benevolent Legion found in my county whereon to serve this writ." This service was sufficient to give the court jurisdiction of the person of the Supreme lodge. Supreme Council, etc., v. Boyle, supra; W. U. Tel. Co. v. Lindley, 62 Ind. 371; Evansville, etc., R. R. Co. v. Spellbring, 1 Ind.App. 167, 27 N.E. 239.
All of the appellants joined in a plea in abatement, and all unite here in assigning as error the court's action in sustaining a demurrer to the plea, which sets up that all the defendants, save the Supreme lodge, were residents of Newton county, Indiana.
The appellants insist that, under section 314, R. S. 1894 (section 312, Horner's R. S.), a personal action against several defendants must be brought in the county where one of them resides, and rely upon McCauley v. Murdock, 97 Ind. 229, as conclusive. They very earnestly urged the overruling of Lindley v. Kregelo, 121 Ind. 176, 22 N.E. 999, which decides that where the court obtains jurisdiction over one defendant, in such actions, process may issue to other defendants, resident in every county in the State. In the view we take of the answer, we need not determine this question. An answer pleaded jointly by several, must be good as to all, or a demurrer to it is properly sustained. Ward v. Bennett, 20 Ind. 440; Black v. Richards, 95 Ind. 184. So, also, a joint assignment of error must be good as to all, or it is not maintained. Hubbard v. Bell, 4 Ind.App. 80; Carr v. Carr, 137 Ind. 232. As to the Supreme Council, this plea was clearly bad. Being joint, it was, therefore, bad as to all. There was, therefore, no error in sustaining the demurrer to this plea. Even had the answers been several, the assignment of error being joint, it would not, under the authorities, avail.
Upon no sound principle of law can we declare that one who does not sign the bond can be held liable thereon. The bond shows upon its face, that the Supreme Council is not a party to it. It does not purport to be executed by the Supreme Council. There is nothing in it to indicate that it was intended to be executed by the Supreme Council. "The execution of an instrument is the subscribing and delivering it, with or without seal." R. S. 1894, section 455; Wild Cat Branch v. Ball, 45 Ind. 213; Scheld v. Leibshultz, 51 Ind. 38.
The counsel for appellee invoke the aid of a curative statute, section 1235, R. S. 1894 (section 1221 Horner's R. S.), which provides that no such bond "shall be void for want of form or substance or recital or condition, nor the principal or surety be discharged; but the principal and surety shall be bound by such bond, recognizance, or written undertaking, to the full extent contemplated by the law requiring the same, and the sureties to the amount specified in the bond or recognizance." It is further provided therein, that in actions "on a defective bond," the defect may be suggested in the complaint, and recovery had thereon to the same extent as if it "were perfect in all respects." They are defects that are to be cured by the statute. Where a bond is complete in all its parts, valid and sufficient upon its face to accomplish the purpose for which the bond was intended, there is nothing upon which this statute can operate. Hart v. State, 120 Ind. 83. That the bond in question was complete and sufficient, without the execution by the Supreme Council, cannot be successfully controverted. Thom v. Savage, 1 Blackf. 51; Railsback v. Greve, 58 Ind. 72; Hinkle v. Holmes, 85 Ind. 405; Keene v. Deardon, 8 East. 298; Johnson v. Johnson, 31 Ohio St. 131. None of these authorities, most of which have been relied upon by appellee, decides that the judgment defendant is bound by the bond which he does not execute. All that they decide is that the bond is sufficient without being executed by the judgment defendant. It is true, there seem to be some States in which it is held that the defendants must themselves sign the bond, but it is not so in Indiana. No case has been cited by appellee which would authorize us to hold the Supreme Council liable upon this bond. It is true, that the Council is liable upon the judgment, but this is not a suit upon the judgment. It is a suit upon the bond, a collateral contract by which the other appellants became bound, but not the Council.
Upon the trial, it was not proper for the appellants to prove that the deceased, whose life was insured, was not really dead, as appellee knew at the time of the former trial. That question was fully involved in the suit upon the certificate. So long as that judgment, rendered by a court properly invested with jurisdiction over the person of the defendant and the subject-matter of the action, stands unmodified, unreversed, and untouched by the hands of a court of equity, its validity cannot be attacked in this proceeding. For whatever relief the parties may be entitled to demand upon such an anomalous condition of affairs, they must appeal to a court of equity by a direct attack upon the judgment. Weiss v. Guerinean, 109 Ind. 438; Cavanaugh v. Smith, 84 Ind. 380; Wiley v. Pavey, 61 Ind. 457; Gaylord v. City of Lafayette, 115 Ind. 423; Cicero Tp. v. Picken, 122 Ind. 260; Harman v. Moore, 112 Ind. 221; Krall v. Libbey, 53 Wis. 292, 10 N.W. 386, would seem to place the sureties on the appeal bond in a position even worse than that occupied by the judgment defendant. We are not required to, and do not, go so far. Were there any claim by the sureties, of collusion or fraud by the appellee and the Supreme Council jointly, another question would be presented.
Although contrary to our first and present impressions, were the question an open one, we are constrained, by the decision in Fee v. State, ex rel., 74 Ind. 66, to hold that the execution of the bond by the sureties is not sufficiently alleged. This is a defect, not of form, but of substance.
Counsel for appellee depend upon sections 348 and 670, R. S. 1894, and assert that the merits of the case have been rightly determined.
The Supreme Court has many times declared that it would not look into the evidence to determine whether or not an error in overruling a demurrer to a bad complaint was harmful. Ryan v. Hurley, 119 Ind. 115; Culver, Admx., v. Yundt, 112 Ind. 401; Belt, etc., R. W. Co. v. Mann, 107 Ind. 89; Pennsylvania Co. v. Marion, 104 Ind. 239; Pennsylvania Co. v. Poor, 103 Ind. 553; Johnson v. Breedlove, Admr., 72 Ind. 368; Friddle v. Crane, 68 Ind. 583.
It is urged by counsel that, in the later case of Miller v. Bottenberg, 144 Ind. 312, that court has indicated a willingness to follow the views expressed by Judge Lotz, in Lake Shore, etc., R. W. Co. v. Kurtz, 10 Ind.App. 60, and to give full effect to the provisions of these statutes, and to disregard any error in overruling a demurrer, if it could really say, from the whole record, including therein the evidence, that the cause has been fairly tried and determined upon its merits. Even the application of the most liberal rule, however, would not suffice to avoid disaster to appellee in this court, because, under the recent case of McKinney v. Hartman, 143 Ind. 224, her complaint was not sustained by the evidence. The complaint avers the recovery of the judgment in the trial court, the prayer for appeal, the execution of the bond sued on by the principal defendant, and that "said appeal was perfected by said company in the Appellate Court," where it was fully decided and the judgment affirmed.
To the complaint a general denial was filed. The evidence shows this bond executed for a term-time appeal. By section 650, R. S 1894, to perfect a term-time appeal, the transcript must be filed in the office of the clerk of the Supreme Court within 60 days after filing the bond. The proper filing of the bond operates to stay proceedings on the judgment. This term-time appeal was not, in fact, perfected, but was abandoned, the transcript not being filed with the clerk within the 60 days. By section 651, therefore, appellee was...
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