Sturgis and Others v. Rogers and Others. lacked of sufficiency in form, substance, recital or condition, the effect which they would have by law, if perfect in those particulars. But there is nothing in the language necessarily indicating a design to impart to the instrument an effect distinctly different from that which was actually contemplated by the parties who executed it, or to impose upon them a liability which obviously they never intended to assume. It would be an anomaly in legislation if it was intended to make the obligors of a bond executed plainly for the purposes of an appeal by A, the involuntary sureties for B, in an appeal by him from a judgment to which A, was not a party. This, instead of supplying defects in a contract intended to be made, which is all that the statute attempts by its terms to do, would be creating a new and very different contract, and binding parties to perform it, without so much as consulting them. Such an interpretation of a statute will be given by the courts only when it will not possibly admit of any other. It is due to the learned counsel for the appellees to say that we have not understood them to contend that the obligors are liable otherwise than for the judgment affirmed against the garnishee. We have considered this question because, in the view which we have taken of the case, its consideration was necessary to a correct judgment. What we have said concerning the ninth paragraph of the answer is applicable to the assignment of error upon the refusal of the court below to grant a new trial. There was a finding in favor of the several plaintiffs for the amounts of their respective judgments against Sturgis and Ellis, with interest thereon. The transcript of those proceedings against Sturgis and Ellis offered in evidence, was the same as that annexed to the answer, the effect of which we have already considered. Inasmuch as Rogers was the only plaintiff in the attachment, the other plaintiffs in this suit had no interest in the judgment rendered therein against the garnishee, and consequently could not recover upon the bond. As to them, the finding was contrary to the evidence, Sturgis and Others v. Rogers and Others. and a new trial should have been granted. As to Rogers, the finding was right, unless his judgment against Sturgis and Ellis was altogether void, as is insisted. But it is urged that all inquiry as to the validity of that judgment is closed by the judgment of this court affirming it on appeal. That may be so. Indeed, it seems to us to be a proposition too clear to need much illustration. On appeal this court undoubtedly had jurisdiction of the subject matter, of the parties and of the question, it being raised by the assignment of errors, and by law it had power to affirm or reverse. It affirmed. A judgment of a court of nisi prius rendered under such circumstances could never be called in question collaterally before the same or any other court. The law is so settled, if anything can be deemed at rest. It must be so also as to the judgments of the court of last resort, where it has jurisdiction, though it mistake the law and err in its judgment. The rule is as essential in the one case as in the other to the repose of society, and the stability of private rights. To say that a judgment of affirmance here, within the power of the court to render, when the parties are before the court, and the case is brought within its lawful jurisdiction, is not a final end of that litigation, would be a startling doctrine, asserting that a cause can never have a final and binding determination. We can therefore only say that that judgment has been affirmed by this court, acting within its jurisdiction, and the question of its validity thus forever settled in its favor. A question is made as to the admissibility of parol evidence in favor of the plaintiffs, other than Rogers, showing that the bond sued on was filed in the appeal already spoken of, and that a blank was left in it to insert their names. We think the admission of the evidence, though perhaps it was unimportant under the allegations of the complaint, was not an error which should reverse the cause. The judgment in favor of the appellee Rogers is affirmed, with costs. The several judgments in favor of the The City of Jeffersonville v. Patterson. other appellees are reversed, with costs, and as to them the cause is remanded for a new trial. J. E. McDonald, A. L. Roache and J. P. Usher, for appellants. T. A. Hendricks and O. B. Hord, for appellees. THE CITY OF JEFFERSONVILLE v. PATTERSON. COUPONS.-INTEREST ON.-Suit against the city of Jeffersonville upon certain interest warrants attached to bonds issued by the city, and payable to bearer in the city of New York. The complaint did not aver a presentation of the warrants at the place of payment, but alleged that the city had no funds in New York. Held, that the plaintiff was entitled to interest on the warrants after maturity. APPEAL from the Clarke Common Pleas. GREGORY, C. J.-This is a proceeding under section 386 of the code. 2 G. & H., p. 222. The statement of the case shows that Patterson is the owner and holder of eleven bonds, each for the sum of $1,000, executed by the city of Jeffersonville, under the corporate scal, payable to the Fort Wayne and Southern Railroad Company, or "bearer," in the city of New York, on the 1st of June, 1880, with interest thereon at the rate of six per centum per annum from the 1st day of June, 1855, payable semi-annually, in the city of New York, on presentation and delivery of the interest warrants attached to the bonds respectively; that Patterson is also the owner and holder of the interest warrants, two hundred and nine of which, for $30 each, had matured at and before the commencement of the action; that they are wholly unpaid, and that the appellant has at no time had any money in the city of New York for the 26 15 127 214 The City of Jeffersonville v. Patterson. payment thereof. Is Patterson entitled to interest on the warrants from the time they respectively matured? This was the question submitted to the court below. That court found in the affimative, and that finding presents the only question in this court. It is claimed that the interest warrants ought to have been presented for payment in the city of New York at maturity, and that the want of funds at the place of payment is no legal excuse for the failure to make such presentation. We think otherwise. The code provides that "in any action or defense founded on a bill or note, or other contract, for the payment of money at a particular place, it shall not be necessary to aver or prove a demand at the place, but the opposite party may show a readiness to pay such demand at the proper place." 2 G. & H., § 82, p. 107. In Gelpcke v. The City of Dubuque, 1 Wallace, 175, the Supreme Court of the United States held that "municipal bonds, with coupons payable to bearer, having, by universal usage and consent, all the qualities of commercial paper, a party recovering on the coupons is entitled to the amount of them, with interest and exchange at the place where, by their terms, they were made payable." The statute provides that "on money due on any instrument in writing, interest shall be allowed at the rate of six dollars a year on one hundred dollars, or at such rate as the parties may agree upon, not exceeding six dollars a year on one hundred dollars." 2 G. & H., § 6, p. 656. We think that the interest warrants in question, according to commercial usage, and under our statute, bear interest from maturity. The judgment is affirmed, with one-fourth of one per cent. damages and costs. T. L. Smith and M. C. Kerr, for appellant. G. V. Howk and R. M. Weir, for appellee. Stackhouse v. The City of Lafayette. STACKHOUSE V. THE CITY OF LAFAYETTE. MUNICIPAL CORPORATIONS.-LEGISLATIVE AND JUDICIAL ACTS OF.-When SAME. LIABILITY FOR MINISTERIAL ACTS.-But where a duty of a purely APPEAL from the Tippecanoe Circuit Court. ELLIOTT, J.-The appellant filed a complaint against the city of Lafayette, which, in substance, is as follows: That on the 15th of September, 1852, the defendant, by a public ordinance, (which is copied into the complaint,) under the corporate name of the president and trustees of the town of Lafayette, did suffer and permit the New Albany and Salem Railroad Company to occupy and use a portion of Mississippi street, now called Fifth street, in said city, as a track for its road, and allowed said railroad company to keep and maintain a culvert where the railroad track on said street crosses "Pearl river," in said city; that said culvert is of insufficient capacity to carry off the water in its natural course and flow in said stream, and obstructs the same, of all of which the defendant had notice; that on the 15th of September, 1862, said culvert, for want of sufficient capacity as aforesaid, caused the water to flow back and submerge lot number 60 in Taylor, White & Ellsworth's addition to the town, (now city) of Lafayette, and caused the same to flow into the dwelling house and stable of the VOL. XXVI.-2. 26 17 167 143 |
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