Burtt v. Little

Davis, J. — This is an action upon an undertaking executed by the appellant as surety, and Samuel T. Moore as principal, to the appellee, Lizzie Little, in an action in replevin commenced before a justice of the peace. In the complaint, said Moore appears, by name, as one of the defendants, but the record does not disclose that any summons was ever issued for him or that he ever in any manner appeared to the action in the court below. If he was in fact a party to the judgment from which this appeal is prosecuted, the appeal should be dismissed because he is not joined as an appellant. Walsh v. Brockway, 40 N. E. Rep. 29. We have not been favored with a brief in behalf of appellee. The action is founded on the bond, and neither the original nor a copy thereof is filed with the complaint. In such case the statute requires that the original written instrument or a copy thereof must be filed with the complaint. Section 365, R. S. 1894. Therefore, appellant’sdemurrertothe complaint should have been sustained. Landon v. White, 101 Ind. 249. Judgment reversed, with instructions to sustain the demurrer to the complaint, with leave to amend.