The State ex rel. Lee v. Wanee

• Decision Date: 18 February 1892
• Docket Number: 385
• Parties: THE STATE, EX REL. LEE, v. WANEE, ADMINISTRATOR, ET AL
• Court: Indiana Appellate Court

30 N.E. 161

4 Ind.App. 1

THE STATE, EX REL. LEE, v. WANEE, ADMINISTRATOR, ET AL

No. 385

Court of Appeals of Indiana

February 18, 1892

From the Shelby Circuit Court.

Judgment affirmed, with costs.

K. M Hord and E. K. Adams, for appellant.

B. F Love, H. C. Morrison, T. B. Adams and I. Carter, for appellees.

OPINION

ROBINSON, C. J.

This suit was commenced by the appellant on the official bond of Thomas Benyon, deceased, executed by said Benyon and his sureties, conditioned for the performance of the official duties of said Benyon as a justice of the peace.

The administrator of the estate of Benyon and the sureties on the bond filed separate demurrers to the complaint, which were sustained, and exception saved.

The rulings on these demurrers constitute the assignment of error.

The complaint, after alleging the election of Benyon to the office of justice of the peace, the execution of his official bond and his acceptance of the office, alleges that the relator, as surety, and one John Slater as principal executed to Samuel Hamilton their note for seventy dollars, with eight per cent. interest after maturity, and attorney's fees, due ninety days after date; that afterwards, while said Benyon was such justice of the peace, said Hamilton, at the instance of the relator, filed in the office of said Benyon as such justice, a complaint on said note against said Slater and Lee, alleging, among other things, that said Lee was surety thereon and said Slater was principal, praying judgment, etc.; that a summons was issued thereon to a special constable, who served the same by reading to said Lee, and by copy on said Slater, and that the defendants were duly notified of the time said cause was set for trial; that at the hour of trial said justice proceeded with said cause, and after hearing the evidence, upon default of said Slater, that said Slater was principal and said Lee was surety, and the introduction of said note, made the following entry upon his docket, to wit: The complaint is then set out, showing said Slater was principal on said note and said Lee was surety. It is then shown that summons was served, etc.; that the surety appeared and the principal made default; that the justice then proceeded with the cause, and found said Slater was the maker of the note and said Lee surety thereon, and judgment was rendered accordingly, and by order of plaintiff's attorney execution was issued forthwith, and placed in the hands of the proper constable, with instructions to levy on and exhaust the property of the maker of said note before the property of the surety was levied on, etc.; that no other and different entry in said cause was made than as above set out; that said justice did not sign his name to said entry, but knowing the consition and tenor thereof, issued an execution on said entry and placed the same in the hands of said constable, and endorsed thereon that said Lee was surety and said Slater was principal, directing said constable to first exhaust the property of said Slater before he levied upon the property of said Lee to satisfy said execution; that said constable proceeded and levied said execution on the property of said Slater for an amount more than sufficient to satisfy said judgment, interest and costs; that said constable, by order of the plaintiff in said cause, released said levy upon said property, and released said execution, stating thereon that such release was made by reason of the want of a judgment to support said execution; that at the time, and for more than fifteen days after the rendition of said judgment, said Slater owned sufficient property within the bailiwick of said constable out of which to make said debt, interest and costs; that said relator was ignorant that said judgment was void until long after said Slater had absconded from the State of Indiana, and taken his property with him, or disposed of it; that thereafter said Lee paid said Hamilton the full amount of said note, interest and costs; that if said judgment had been valid, said debt could have been made off of the property of said Slater, and said Lee would not have been required to pay any part of said debt. The complaint alleges the death of Benyon and the appointment of Wanee as his administrator.

The foregoing constitute the material averments of facts in the complaint.

The parties to the action concur that the purported judgment rendered by the justice of the peace was void by reason of the justice failing to sign said judgment, and such is the law. "It is only by...