Blake v. Douglass , 27 Ind. 416 ( 1866 )

Elliott, J.

Complaint by Douglass against James A. Blake, the appellant, and John W. Blake, alleging that on the 8th day of October, 1858, Conner Worman recovered a judgment in said Clinton Circuit Court against said James A. and John W. Blake, for the sum of $331 and costs of suit; that he, said Douglass, afterwards, at the request of said James A. and John W. Blake, became replevin bail on said judgment, and afterwards, in January, 1861, by reason thereof, was compelled to, and did, pay on said judgment the sum of $101. The complaint prayed that the judgment he revived and that execution issue thereon for the benefit of said Douglass, for said sum of $101, and interest thereon, &c.

James A. Blake appeared and answered in two paragraphs. 1. The general denial. 2. That at the time of the rendition of the judgment referred to in the complaint, and at the time said Douglass became replevin bail thereon, defendant was a minor, under the age of twenty-one years; that he was not a partner of said John W. Blake, and did not appear to said action, either in person or by attorney, but that judgment was taken therein against him by default, and that all of said facts were known to said Douglass at the time he became replevin bail on said judgment; that he did not request said Douglass to become replevin bail, nor did he know that he had done so until about the time of the commencement of this suit; that said Douglass became replevin bail on said judgment solely at the instance and request of said John W. Blake. The court sustained a demurrer to each paragraph of the answer, to which the defendant excepted, and, the defendant failing to answer further, a final judgment was rendered against him The cause was continued as to the defendant John W. Blake.

The question presented here arises upon the ruling of the court in sustaining the demurrer to the answer. The general denial was well pleaded, and the court erred in sustaining the demurrer to it, and for that error the judgment must be reversed. As to the second paragraph of the answer, it is to be observed that the infancy of the appellant might have been a good defense if he had appeared and set it up in the original suit. It was a personal privilege, and leaving failed to avail himself of it at the proper time,, by suffering judgment to be taken against him by default, the judgment is binding upon him. Douglass, by becoming replevin bail and paying a part of the judgment, is; entitled to an execution for his own use, for the amount so. paid. It is provided by statute that the judgment, in such cases, shall not be discharged by such payment, but shall remain in force for the use of the replevin bail. 2 G. & H., § 676, p. 309. A judgment taken against an infant by default, without the appointment of a guardian ad litem, to appear for him, is erroneous, but not void.

L. McClurg, for appellant. J. N. Sims, for appellee.'

The judgment is reversed, with costs, and the cause remanded for further proceedings.