Dienst v. Fischmann Loan & Bldg. Co.

Citations

• 20 Ohio C.C. Dec. 537

Syllabus

<p>BONDS.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>SUBBOGATION OR BUILDING ASSOCIATION AGAINST GENERAL CREDITORS.</p> <p>A building association through the negligence of its attorney loaned $1,000‘ to one holding a defective title to the property upon which he gave 'a mortgage to secure the loan. The mortgagor died. The proceeds of the' loan could not be traced to his creditors, but were probably used by the widow in satisfaction of her allowance of $1,500 for the first year’s support of herself and minor children. The attorney moved out of the jurisdiction and in the present suit on his bond service could not be obtained upon him: Held,,</p> <p>(1) In an action on a bond which is in the nature of a joint obligation, the fact that one of the obligors could not be served with summons because not within the jurisdiction of the court does not prevent the taking of judgment against obligors who are within, the jurisdiction.</p> <p>[For other cases in point, see 2 Cyc. Dig., “Bonds,” §§ 834-847. — Ed.]</p> <p>(2) The building association was without remedy on its mortgage by way of subrogation against the general creditors, of the mortgagor or the first year’s allowance to the widow.</p> <p>[For other eases in point, see 2 Cyc. Dig., “Bonds,” §§ 1110-1116; 7 Cyc. Dig., “Subrogation,” §§ 8-23. — Ed.]</p> <p>(3) The attorney having knowledge of the mistake which he had made,, notice to him or his bondsmen of the loss the building association had sustained was not necessary, and laches or estoppel cannot be pleaded, in their behalf.</p> <p>[Syllabus approved by the court.]</p>