Bruns v. Bank

Motion to make petition more definite, etc.

Suit is upon two successive bonds given by the Franklin Bank and Henry Burkhold to various defendants, including the present plaintiff, in proceedings in error to the Superior Court of Cincinnati in General Term and to the Supreme Court of Ohio, to reverse a judgment of the Superior Court in Special Term, in cause No. 50080.

The motion is (1) to require plaintiff to file copies of the bonds; (2) to require him to separately state and number'the several causes of action; and (3) to require plaintiff to elect between said causes of action.

The first branch of the motion'is governed by Section 5085 of the Practice Code requiring that in an action * * * founded on * * * a written instrument as evidence of in*479debtedness, a copy thereof must be attached to and filed with the pleading.

The surety on a bond is liable in a secondary capacity, solely upon the bond as evidence of his indebtedness.

The reasons are obvious why, in suits on bonds, the statutory requirement cited, applies with peculiar force. The liability of a defendant depends very closely upon the exact wording of the bond, and full and exact knowledge in this regard is, therefore, necessary to the preparation of his defense.

The second branch is governed by Section 5061 of the Practice Code. A single cause of action can not be predicated upon two bonds given in successive steps of procedure. . Each has its appropriate function and covers its specific part of the damage sustained. The third branch is not well taken.

The suit embraces two causes of action not repugnant or inconsistent.

Motion granted as to first and second clauses, and denied as to third.