Wiles v. The Trustees of Philippi Church.

Trustees of" a certain " Church" does not question, but admits, the plaintiff's capacity to sue.

SAME.-Corporate Existence not put in Issue by General Denial.— Such plaintiff's corporate existence is not put in issue by an answer of general denial, nor by an answer specially alleging that certain persons named in the complaint as such trustees are, in fact, not the trustees. SAME.-Evidence.-Instructions.-Harmless Error.-Under the issues made by such pleadings, error in the admission of evidence, or in the giving of instructions to the jury, relating to the corporate existence of the plaintiff, is harmless.

SAME.-The mere fact that an instruction to a jury is "out of place and not pertinent to the issues" is not ground for new trial, nor for reversing the judgment.

From the Hamilton Circuit Court.

T. J. Kane and T. P. Davis, for appellant.

BIDDLE, J.-The trustees of the Philippi Church brought this complaint, to enforce the specific performance of a contract alleged to have been made by the appellant, to convey certain grounds to the church.

A demurrer to the complaint, alleging the insufficiency of the facts to constitute a cause of action, was overruled. The appellant excepted.

Answer in denial, and by two special paragraphs. Demurrers were overruled to the two special paragraphs, but no question is made upon them.

Trial, verdict, and judgment decreeing the specific performance as prayed.

By a bill of exceptions, the evidence, and several questions arising upon the admission of evidence, and the instructions given to the jury, are brought before us.

In support of the demurrer, to the complaint, the appellant argues that the corporate organization of Philippi Church is not sufficiently shown, and that it has no capacity to sue; but these questions are not raised by a demurrer for the want of facts. Such a demurrer admits the organization, and the capacity to sue. Jones v. The Cincinnati Type Foundry, 14 Ind. 89; Heaston v. The Cincin

Wiles v. The Trustees of Philippi Church.

nati and Fort Wayne R. R. Co., 16 Ind. 275; The Board of Commissioners, etc., v. Bright, 18 Ind. 93; Cicero Hygiene Draining Co. v. Craighead, 28 Ind. 274; Debolt v. Carter, 31 Ind. 355; Collins v. Nave, 9 Ind. 209; Story v. O'Dea, 23 Ind. 326.

The appellant insists, that, under the issues, the appellee was bound to prove its corporate existence. We think not. The general denial does not put in issue the corporate existence; nor did the third paragraph of answer, which alleges that certain persons named therein are not the trus tees of Philippi Church. It is immaterial what the personal names of the trustees are; the Philippi Church exists all the same. The names of the trustees are alleged in the complaint, but this is immaterial, especially when the existence of the corporation is not put in issue. In addition to the above authorities, we cite the following: Wert v. The Crawfordsville and Alamo Turnpike Co., 19 Ind. 242; The Adams Express Co. v Hill, 43 Ind. 157; The Indianapolis Furnace and Mining Co. v. Herkimer, 46 Ind. 142; The Presbyterian Church of Roanoke v. Horton, 50 Ind. 223; The Trustees of the Christian Church of Wolcott v. Johnson, 53 Ind. 273.

The appellant also complains of the introduction of a written paper as evidence, showing the appointment of the trustees, but, in his objections to it at the trial, he did not point out what the objection was; he therefore has waived it, if any existed. But we perceive no objection to the paper, nor to the parol evidence introduced to prove the same fact. Hamrick v. Bence, 29 Ind. 500. But, as we have remarked, we do not think the validity of the .corporation, or its capacity to sue, was put in issue. The answer of general denial simply denies the cause of action, not the existence of the corporation nor its capacity to sue; and the special paragraphs admit the cause of action, and endeavor to avoid it. They also admit the existence of the corporation, and its capacity to sue.

The State. ex re. Page, Guardian, v. Page et al.

The instruction numbered 1, which is complained of, goes to the corporation and election of the trustees, and if it was even wrong, would be harmless, as these questions were not within the issues.

Instruction numbered 2 goes to the certificate of the election of the trustees, and is all in favor of the appellant. He can not complain of it.

The only objections made to the third instruction given by the court, and to the second one given as asked by the appellee, are, that they were "out of place, and not pertinent to the issues." We could not reverse the judgment for these reasons, where it is so plain, as in this case, that they, the instructions, are harmless.

There is no available error in the record.

The judgment is affirmed, at the costs of the appellant.

THE STATE, EX REL. PAGE, GUARDIAN, v. PAGE ET AL. GUARDIAN AND WARD.-Release of Surety, and Execution of New Bond.Action on Old Bond.-Answer.-Where, by order of the proper court, upon his own application, a surety on a guardian's bond is released from his suretyship, and a new bond, with new surety, has been executed, he is thereby released as to any future liability on such bond; but such facts constitute no answer, on behalf of such surety, to a complaint on the old. bond, for a prior breach. SAME.-Former Recovery.-An answer in such action, by such surety, alleging a former recovery by the plaintiff, in an action on such new bond,against such guardian and the new surety, is insufficient on demurrer.

From the Warrick Circuit Court.

S. B. Hatfield, C. A. De Bruler and E. R. Hatfield, for ap-pellant.

I. S. Moore, for appellees.

VOL. LXIII.-14

The State, ex rel. Page, Guardian, v. Page et al.

NIBLACK, J.-This was an action by the State, on the relation of Minerva Page, guardian of Samuel F. Page and others, minor children and heirs at law of Reuben S. Page, deceased, against William D. Page, Andrew J. Miller and William S. Harpole, on a guardian's bond, in which the said William D. Page was the principal obligor.

The complaint stated, that, on the 13th day of January, 1873, the said William D. Page was appointed guardian of the persons and estates of the minor heirs above referred to, and executed a bond as such guardian, with the said Miller and Harpole as his sureties; that there immediately came into the hands of the said William D. Page, as such guardian, the sum of two thousand dollars, which he, during the months of April, May and June, in said year 1873, converted to his own use, and which he had failed to pay over to the relatrix, as he was ordered and directed to do by the Warrick Circuit Court.

The other defend

The defendant Page made default. ants, Miller and Harpole, answered in three paragraphs: 1. The general denial, which was subsequently withdrawn ;

2. That, in June, 1874, they made application by petition to the said Warrick Circuit Court to be released from liability as sureties on the bond sued on, and that, on the 11th day of July, 1874, their petition coming on to be heard, it was ordered by said court, that they be released as such sureties, and that their codefendant, Page, should execute a new bond as such guardian, which he thereupon did execute, with one Levi Wilkerson as his surety; and,

3. Setting up substantially the same facts as in the second paragraph, and averring, that, in an action on the relation of the said Minerva Page, against the said William D. Page and the said Levi Wilkerson, on said new bond, the relatrix recovered a judgment in said Warrick Circuit Court, against the said William D. Page and Levi Wilker

The State, ex rel. Page, Guardian, v. Page et al.

son, for the sum of one thousand six hundred and fortynine dollars and forty cents, and costs of suit, which judgment was in full force, unreversed and unsatisfied.

The plaintiff demurred to the second and third paragraphs of the answer above set out, but the demurrer was overruled, and the plaintiff standing on the demurrer, and declining further to reply to said paragraphs, judgment was rendered in favor of said Miller and Harpole, and against the relatrix, for costs.

We are, therefore, only required to consider the sufficiency of the second and third paragraphs of Miller's and Harpole's answer.

*

Section 29 of the act concerning the settlement of decedents' estates, and prescribing the duties of executors and administrators, provides, that "Any surety may apply to the proper court * * to be released from his bond with such executor or administrator, by filing his request therefor with the clerk of such court, and giving ten days' notice thereof to such executor or administrator, when such court shall release such surety; and if such executor or administrator fail to give new bond or surety, as by it directed, he shall be removed, and his letters superseded; * * * * * * and such original surety shall be liable only for the acts of such executor or administrator from the time of the execution of the original to the filing of such new bond." 2 R. S. 1876, p. 504.

Section 165 of the same act, page 552, supra, further provides, that, "When any new bond shall be required of an executor cr administrator, the sureties in the prior bond shall, nevertheless, be liable for all breaches of the conditions of such prior bond, committed or suffered before the new bond shall be approved by the court," etc.

Section 26 of the act in relation to guardians and wards still further provides, that "Sureties in the bond of any guardian may be discharged from future liability therein