Teutonia National Bank v. Wagner

The opinion of the Court was delivered by Bermudez, C. J. This is a suit to enforce the liability of J. M. Wagner as cashier, and of the other defendants as sureties on his bond, given in that capacity. [733] The claim was originally for $7123 47, but, upon the discovery of certain credits, it was reduced to $5878 62, amount of alleged defalcations. The main defendant, Wagner, was not found and made no appearance. The sureties, at first, pleaded by exceptions, that the petition disclosed no cause of action and that the bond was not furnished in favor of the plaintiff. Those preliminary defenses having been overruled, they pleaded the general issue; but specially, that the bond declared upon, had been altered, after signature, without their consent and that, by the acts of the plaintiff, in discharging three of their co-sureties and, in proving derelict to duty, they have been discharged from all responsibility. After hearing, the lower court gave j udgment for the plaintiff for $4570 75 with interest and costs against five of the eight sureties, but only up to the amount for which they had respectively signed the bond. Two of the sureties thus condemned, have appeald from the judgment so rendered; William Bogel and Ed. E. Stockmeyer. The plaintiff has filed in this Court an answer, asking that an item of $1307 87, not allowed by the lower court, be here decreed in their favor. The Bank has not appealed from the judgment of nonsuit, as concerns Oertling. The exception of no cause of action was properly overruled. It is evident that, had the allegations of the petition been proved, on a confirmation of default, the judgment could not have been reversed on appeal. Eor the purpose of the exception, they had to be taken for true. The petition does not set forth that the defendants are liable in solido to the Bank as co-debtors; but distinctly, that they are each so responsible with Wagner. In explanation, and for greater certainty, there is annexed a copy of the bond, as part of the petition. The bond controls the allegations. 27 An. 224; 18 An. 680; 7 An. 295; 6 L. 276; 14 L. 368; 1 R. 469. The other defense was likewise properly overruled. On its face, the bond, copy of which had been attached to’ the petition, showed that it was given, in as many words, in favor of the plaintiff in the present action, and that Wagner, the principal, was then cashier elect. That the Bank was not in being at the date of the bond, was not a defense susceptible of being set up by the defendants, who had in the very bond recognized its existence as a living corporation. 28 An. 736; 2 N. S. 672, 678; 10 An. 491; 11 Otto, 192. The Bank had been organized and existed at the time. It was ready for business, although the authority required to commence such had not yet been received. U. S. R. S. 5133, 5138, 5144, 5168, 5169.