Keegan v. Carpenter et al. KEEGAN V. CARPENTER ET AL. PRACTICE.-Harmless Error.-Though a demurrer to a pleading has been erroneously overruled, if the court on the trial found that the pleading was not true, the ruling cannot be a cause for reversing the judgment. EVIDENCE.-Hearsay.—Representations of Maker to Surety.-Statements or representations made by the principal maker of a promissory note, to one whom he procures to sign the note in blank as surety, in reference to the subsequent signing of the note by a third person as surety, made in the absence and without the authority of such third person, are not admissible in evidence against such third person on a question of suretyship. From the Vanderburgh Circuit Court. S. R. Hornbrook, for appellant. A. Iglehart and J. E. Iglehart, for appellees. DOWNEY, J.-Willard Carpenter sued Charles J. Moffett, Wilhelmina Moffett, and John W. Keegan, the appellant, on a promissory note executed by the defendants in the order named, the appellant adding to his signature the word security." Wilhelmina Moffett filed an answer by way of cross complaint, in which she alleged that the note sued on was brought to her by the defendant Charles J., as a printed blank, a copy of which she sets out in the answer; that she was, by the representations and agreement of the said Charles J., that said note should be filled up for two hundred dollars only, for the use of the said Charles J., as was indicated by the figures"200" in the margin of said blank, induced to sign said blank; of all which said defendant Keegan had notice. But this defendant avers that said Charles J., and defendant John W. Keegan, who had full notice of said agreement, afterward and before said note was delivered to the plaintiff, entered into a fraudulent combination to cheat and defraud the defendant; whereby, in order to raise money to pay a debt due from said Charles J. to defendant John W., he, said John W., fraudulently and in violation of said agreement, of which he had notice, filled up said note for four hundred dollars; wherefore she says, that if as between all Keegan v. Carpenter et al. the defendants and the plaintiff, the note is valid, still, as between this defendant and the other defendants, said note is fraudulent and void; and judgment recovered upon said note should be first levied of the goods of the other defendants. Keegan demurred to this answer, for the reason that it did not state facts sufficient to constitute a cause of action against him, nor to entitle her to the relief prayed for in her cross complaint. The demurrer was overruled by the court, and this ruling is the first alleged error. Keegan replied to the answer, or cross complaint, of Wilhelmina Moffett, by general denial. Wilhelmina and Charles J. Moffett united in an answer, in the first paragraph of which it is alleged, that Wilhelmina is surety for said Charles J., who received the consideration; and, in the second, as to the sum of forty dollars of the amount of the note, that the same was for usurious interest retained by the plaintiff. To this joint answer, the plaintiff replied by a general denial. Keegan filed an answer, or cross complaint, in which he averred that he signed the note as surety for Charles J. and Wilhelmina Moffett, and prayed judgment accordingly. Wilhelmina Moffett replied to the answer, or cross complaint, of Keegan, denying the same, and saying, that if she was liable at all, it was only as the co-surety of Charles J. Moffett, with Keegan. A trial by the court resulted in a special finding of the facts, with conclusions of law thereon. The court found, among other things, that Keegan signed the note as a co-surety of Wilhelmina for Charles J. Moffett, and made an order that the amount be levied first of the property of Charles J., and then equally of that of Wilhelmina and Keegan. A motion for a new trial was made by Keegan, which was overruled; and this is the second error assigned, and the oniy other error properly assigned. We regard the first alleged error, if there was an error, as Keegan v. Carpenter et al. having become unimportant in consequence of the finding of the court against Mrs. Moffett, on her answer, or cross complaint. She sought to have the court make an order that the property of the other parties should be liable on the execution before her's, because the note had been filled up for a greater amount than she consented to become liable for when she signed the note. The court found on this part of the case against her, and rendered judgment that she and Keegan were joint sureties for Charles J. Moffett. Conceding that the court should have sustained the demurrer of Keegan to this answer and cross complaint, still as the court on the trial found that the pleading was not true, the overruling of the demurrer did not harm the appellant, and cannot be a cause for reversing the judgment. Charles J. was a son of Wilhelmina, and got his mother to sign the blank note in the absence of Keegan. The court, over the objection of Keegan, allowed Wilhelmina to testify to what her son said to her at the time when she signed the blank, to the effect that Keegan was to sign the note as a co-surety with her. This ruling of the court was made a ground for a new trial. We do not see how this ruling of the court can be sustained. The issue was between Wilhelmina and Keegan, and it is, according to this ruling, to be determined by what was said by the son to his mother in the absence of Keegan. We think the statements of the son were inadmissible as evidence against Keegan. The rule is a familiar one. It does not appear, and is not even claimed, that Keegan had authorized the son to make such a statement to his mother, or any statement whatever on the subject. See Schooley v. Fletcher, 45 Ind. 86. The statements of the son to the mother, in the absence of Keegan, fall under the designation of hearsay. I Greenl. Ev., sec. 124. The judgment, as to the question of suretyship, is reversed, Draper v. Dunn. with costs, and the cause remanded, with instructions to grant a new trial as to that question. Opinion filed May term, 1874; petition for a rehearing overruled November term, 1874. DRAPER V. DUNN. BILL OF EXCEPTIONS.-A bill of exceptions can not be regarded as part of the record where it does not appear from the record that such bill was filed within the proper time as required by statute. From the Clay Circuit Court. A. T. Rose, J. F. Stephenson, and F. C. Denny, for appellant. 7. E. McDonald and J. M. Butler, for appellee. BUSKIRK, C. J.-This was an action by the appellee against the appellant, to recover the possession of and quiet the title to certain described real estate. There was issue, trial by the court, resulting in a finding for the appellee, and, over a motion for a new trial, judgment was rendered on the finding. The error assigned is based upon the action of the court in overruling the motion for a new trial. The judgment was rendered on the 11th of May, 1871. The clerk has copied into the record a bill of exceptions which was signed by the judge on the 7th of June, 1871; but it does not appear from the record that such bill was ever filed. The transcript is certified by the clerk on the 30th of June, 1871, and was filed in the office of the clerk of this court on the 18th of August, 1873. Nor is there any order of the court extending the time beyond the term for the execution and filing of the bill of exceptions. The bill can not be regarded as constituting a part of the record, and the Nicholson v. Bowen. point being made and insisted on by counsel for appellee, we must hold, in accordance with repeated decisions of this court, that there is no question presented for our decision. The judgment is affirmed, with costs. NICHOLSON V. Bowen. From the Wayne Circuit Court. DOWNEY, J.-Suit by the appellee against the appellant, before a justice of the peace, on an ordinary due-bill signed by the appellant and one Joseph S. Nicholson. The defendant, treating the instrument as a joint one, pleaded a former recovery against Joseph S. Nicholson before a justice of the peace, filing a transcript of the judgment with her answer. From the record of that judgment, it appears that the appellant was not found, and that, as to her, the action was dismissed. A demurrer to this answer was sustained both before the justice of the peace and in the circuit court, and this is the error assigned in this court. This ruling was correct. 2 G. & H. 593, sec. 63; Kittering v. Norville, 39 Ind. 183. The judgment is affirmed, with five per cent. damages and costs. |