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to the bolder of a sufficient amount of the deposit to pay the check, and therefore a definite appropriation of that sum to its payment, binding upon all the parties to the check.
The argument sought to be made, if we understand it, is, that the certification of the check is a no more effectual appropriation of the fund on deposit to the payment of the check than was already made by the act of the drawer in giving the check; and therefore that one of the chief grounds upon which the rule adopted in other states, that certification releases the drawer, is based, fails or is inapplicable here. If the mere fact of such appropriation, however made, is the test by which to determine whether the drawer has been released or not, there may be force in the argument. We do not understand, bowever, that such is the case. Some of the authorities, it is true, allude to and dwell upon that circumstance as possegging very considerable significance, but we do not understand that any of them make it the test or basis of the rule.
The rule laid down in Munn v. Burch, 25 Ill. 35, is based upon the implied agreement on the part of the banker to pay out the money deposited to the holders of the depositor's checks, at such times and in such sums as the depositor sees fit, by his checks, to order, and such agreement is held to be 60 far available to the holder of the depositor's check as to enable him, after the check has been duly presented for payment and payment refused, to bring suit against the banker in his own name and recover the amount of the check. The banker, as the result of his implied agreement, becomes the principal debtor, but the drawer is still liable, at least as burety, and is at liberty at any time, by paying and taking up the check, to reinvest himself with the legal title to the money on deposit. The appropriation of the fund then, 80 far as any definite appropriation of it can, under the circumstances, be said to be made, is only conditional, and follows in strict accordance with the terms of the contract between the parties, and must be regarded as one of the consequences contemplated by them at the time the check was drawn.
But where the holder of the check, on presenting it to the banker, instead of demanding and receiving payment, as the parties contemplated, and as is his legal duty, requests and obtains certification, and retains the check in his own hands, wholly different rights are obtained, and consequently differ ent rules of law are applicable. The appropriation of the derosit to the payment of the check then becomes absolute, and the holder enters into new contractual relations with the banker, not contemplated or authorized by the drawer, and which place the fund appropriated wholly beyond his control and out of his reach.
Even viewing the drawer as a surety, the new contract between the creditor and the principal debtor, affecting as it does the character of the debt and the time and manner of payment, should of itself be held, upon well-settled principles of law, to be sufficient to discharge his liability as surety. But whether the decision of the case should be placed upon this ground or not, the presentment of the check for payment and its dishonor on the one hand, and its presentment and certification on the other, involve legal rights, and invoke the application of legal rules, so essentially different, that the doctrine of the case of Munn v. Burch, 25 Ill. 35, which is controlling where payment is demanded and refused, can have no relevancy to or controlling effect, even by analogy, in a case where the holder gets the check certified.
We are of the opinion that no error was committed in refusing to hold the proposition submitted by the plaintiff as the law in the decision of the case, and that the appellate court properly affirmed the judgment. The judgment of the appellate court will accordingly be affirmed.
BANKS AND BANKING_PAYMENT BY CERTIFIED CHECKS. — Bank certifying check as "good" creates a new and binding obligation, on the part of the bank towards a bona fide holder of the check for value, to hold sufficient funds of the drawer to meet check: Farmers' etc. Bank v. Butchers' etc. Bank, 69 N. Y. 125; 69 Am. Dec. 678. Where the holder of a check procures it to be certified, this operates as payment of the debt for which the check was drawn, and the drawer is released from liability: French v. Irwin, 4 Baxt. 401; 27 Am. Rep. 769; First Nat. Bank v. Leach, 52 N. Y. 350; 11 Am. Rep. 708; Born v. First Nat. Bank, 123 Ind. 78; 18 Am. St. Rep. 312.
BANKS AND BANKING - EFFECT OF CERTIFYING CHECK. - As to the liabil. ity of banks on checks certified by them, see notes to Farmers' etc. Bank v. Butchers' etc. Bank, 69 Am. Dec. 691-694; Bickford v. First Nat. Bank, 42 Ill. 238; 89 Am. Dec. 436, and extended note; Clews v. Bank, 42 Am. Rep. 308-311. A bank is liable on a certified check, whether the drawer had suf. ficient funds or not: French v. Irwin, 4 Baxt, 401; 27 Am. Rep. 769; Farmers' etc. Bank v. Butchers' etc. Bank, 16 N. Y 125; 69 Am. Dec. 678; Cook v. State Nat. Bank, 52 N. Y. 96; 11 Am. Rep. 667; Hill v. Nation Trust Co., 108 Pa. St. 1; 56 Am. Rep. 189. The certification is equivalent to a representation that the drawer has funds in the bank with which to pay the check, and that the bank will retain such funds, and pay the check at the banks dosignated: Lynch v. First Nat. Bunk, 107 N. Y. 179; 1 Am. St. Rep. 803.
Hurts V. MARTIN.
(131 INDIANA, 1.) APPELLATB PROCEDURE. — NOTICE TO co-parties is imperatively required by
the statutes of Indiana. APPELLATE PROCEDURE — MISTAKE, RELIEF FROM. – If the failure to servo
notice of appeal upon co-parties is due to accident or mistake of fact, the appellate court may relieve against the mistake, and is not bound to dismiss the appeal. L. J. Coppage and M. D. White, for the appellants. H. H. Dochterman and D. Simms, for the appellee.
ELLIOTT, C. J. This action was instituted by John B. Mar tin against Mark O. Hutts, Henry P. Hutts, Milton Hutts, Joseph Hutts, Francis Hutts, Eliza Whittaker, and William Whittaker. The trial court found that all of the defendants were in possession of the land to which Martin asserted a right, and that they claimed title adversely to him. The court found and adjudged that Martin was entitled to the land, and to recover possession. William Whittaker is not made a party to the appeal, but in the assignment of errors Elizabeth Whittaker is named as an appellant. The appellee has filed a motion to dismiss the appeal, upon the ground that two of the defendants below, and co-parties of the appel. lants, are not made parties to the appeal.
The rule requiring notice to be given co-parties is not a technical one, but, on the contrary, is a rule of substance and importance. The presence of co-parties on appeal is essential to complete jurisdiction, so that the question of co-parties is one of a jurisdictional nature. Our statute concerning co-parties is explicit and mandatory, and neither the court nor the parties can disregard it: Rev. Stats. 1881, sec. 635. Notice to co-parties is imperatively required: Travelers Ins. Co. v. Yount, 98 Ind. 454; Concannon v. Noble, 96 Ind. 326; Shultie: v. Keiser, 95 Ind. 159; Hunderlock v. Dundee etc. Co., 88 Ind. 139.
The common-law rule respecting parties was more strict than that prescribed by our code. It is, however, not always true that parties to the record or parties to the action upon the same side are co-parties, for there may be a complete sev. erance of interest by the judgment below, or the parties to the action or record may not be parties to the judgment.
In this instance Eliza Whittaker and William Whittaker are co-parties of the appellants, for the action is to recover possession of land, and the trial court found and adjudged that all who were defendants were in possession of the land, asserting title adversely to the appellee, and among the defendants were William and Eliza Whittaker. As they were co-parties, the appellants should have given them notice as the law requires.
We have concluded that, although the appellants have not given their co-parties notice, the appeal ought not to be dismissed. This conclusion is asserted by us for the reason that the appellants have shown that the failure to make necessary parties was due to accident or to mistake of fact. The mistake as to Eliza Whittaker is simply in naming her Elizabeth Whittaker, and as to William Whittaker, the mistake is shown to have been caused by an error of the clerk of the trial court in making out the transcript. We think it clear that an appellate court has the inherent power to relieve against accident and excusable mistake in the proper case: Smythe v. Boswell, 117 Ind. 365. If it were not for the mistake, the motion to dismiss the appeal should be sustained, inasmuch as all parties must be brought in within the time limited for appealing, unless accident, fraud, or excusable mistake is affirmatively shown: Holloran v. Midland Ry Co., 129 Ind. 274.
Ordered, that the motion to dismiss be overruled, that the costs of the motion be taxed against the appellants, and that they be allowed thirty days in which to correct their errors respecting parties.
APPEAL MISTAKE IN NOTICE OF APPEAL, whereby the judgment appealed from is described as entered on the day when the judgment was ren. dered, instead of the day when it was entered, does not entitle respondent to a disin issal of the appeal: Anderson v. Goff, 72 Cal. 65; 1 Am. St. Rep. 34.
CULLY V. SHIRK.
(131 INDIANA, 76.) JUDGMENT. - RELIEF FROM JUDGMENT, ON THE GROUND THAT THE SHERIFF'S
RETURN OF SERVICE OF PROCESS IS False, will not be granted in an action to set aside such judgment, when there is no pretense that tho
conduct of the officer or of the sheriff was fraudulent. JUDGMENT – COLLATERAL ATTACK, WAAT 18. — The court intimates that,
were the question necessarily involved, it would hold that every attack upon a judgment for want of jurisdiction in the court to render it, pre dicated on matters dehors the record, is a collateral attack. J. T. France and J. T. Merryman, for the appellant. P. B. Manley and E. E. Friedline, for the appellees.
MILLER, J. This action was brought by the appellant against the appellees to set aside, vacate, and declare null and void a judgment and decree of the Adams circuit court, ren. dered against her in an action to foreclose a mortgage, and to cancel a sheriff's deed executed in virtue of the judgment and decree.
The judgment is assailed upon the ground that the court was without jurisdiction of the person of the defendant. The complaint alleges that "she never had, at any time, any notice of any kind whatever of the filing of said complaint, or the pendency of said action; that the return of said sheriff on said summons, wherein he states that he left a true copy of said summons at the last and usual place of residence of this plaintiff, is wholly false; that no copy of summons or process of any kind, in relation to said cause, was ever left at the residence of this plaintiff, or served on her in any manner what ever; that she never appeared to said cause, in said court, voluntarily or otherwise, and never, in any manner submitted herself to its jurisdiction in said action.”
This was not an application, under section 396 of the code, to be relieved from a judgment taken against her, through her mistake, inadvertence, surprise, or excusable neglect; but was simply a suit to have the judgment set aside, upon the ground that the return of the sheriff, showing that a summons had been served upon her, was untrue; that she never had been served with process, and that therefore the court was without jurisdiction of her person when the judgment was rendered.
There is no claim that the defendants in the action of fore