
    Sherwood v. The State, ex rel. Sherwood.
    
      Divorce and alimony — Indemnity bond obligating payment for support of children — Section 11979-1, General Code — Action may be maintained by state on bond, when — Section 11244, General Code — Bond by husband to secure entry of decree, valid — Judgment on pleadings where payments made exceeded amount of bond — Installments payable exceed obligation of bond.
    
    1. State could maintain action on indemnity bond given by defendant to it, under Section 11979-1, General Code, conditioned on payment of stipulated sum each week for support of minor child, under Section 11244, General Code, providing that person with whom contract is made for another’s benefit may sue without joining beneficiary.
    2. Bond given, under Section 11979-1, General Code, to state by husband to secure entry of decree when granted divorce, conditioned on payment of sum each week into court for support of his minor child, held valid.
    3. Judgment on pleadings for amount of obligation on indemnity bond held proper, notwithstanding defendant’s answer claimed payments in excess of obligation of bond, where, after he had been credited for all payments claimed, there still remained default on required payments in excess of obligation of bond.
    (Decided June 7, 1926.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. Charles L. Hopping, for plaintiff in error.
    
      Messrs. Matthews & Matthews, for defendant in error.
   Hamilton, J.

The action in this case was on an indemnity bond given by Peter Y. Sherwood; the indemnitor being the Maryland Casualty Company. The bond, in the sum of $1,500, was executed on the 26th day of January, 1917. The condition of the bond was as follows:

“Whereas, on the 24th day of February, 1916, after a hearing the court among other things granted the said Peter V. Sherwood a divorce as prayed for and ordered said Peter Y. Sherwood to pay the sum of Ten Dollars ($10.00) each and every week into this court for the care, support, maintenance and education of his minor child, Jocelyn E. Sherwood, until said Jocelyn E. Sherwood reaches the age of seventeen years, except in case of the prior decease of the said Peter Y. Sherwood, in which event the obligation under this bond shall cease and be determined:
“Now, therefore, if the said Peter Y. Sherwood shall well and truly pay $10 each and every week into this court, as hereinbefore provided, * * * then the obligation shall be void, otherwise it shall remain in full force and virtue in law.”

The bond was given under favor of Section 11979-1, General Code. The constitutionality of this section was attacked in a prior proceeding in this case, and its constitutionality was upheld by this court and by the Supreme Court. The bond is therefore a binding obligation under these prior decisions.

The trial court rendered a judgment in favor of the plaintiff, the state of Ohio, for the use of Jocelyn Sherwood, for $1,500, the amount of the obligation under the bond. From that judgment, error is prosecuted to this court.

Two points are made by the plaintiff in error in the brief: First, that plaintiff is without legal capacity to maintain the action, because neither it nor the minor child is the real party in interest; second, that the court was without power to render judgment on the pleadings, since there were some credits which should have been taken into account in rendering the judgment, and which could only be ascertained by proof.

On the first proposition, Section 11244, General Code, provides: “A person with whom, or in whose name, a contract is made for the benefit of another, * * * may bring an action without joining with him the person for whose benefit it is prosecuted.”

Moreover, the validity of the bond has been established by the prior decisions in this case. The bond makes the state of Ohio the obligee, and provides that the amount of $10 per week, for the purposes named, shall be paid into the court of domestic relations of Hamilton county. If the bond is valid, and it is so determined, then the conditions are set forth, clearly giving the plaintiff herein the right to maintain this action. The fact that Peter Y. Sherwood, the father, may have paid to other parties, or be obligated to other parties for some support or maintenance of his child, could not affect the obligation under the bond,- and the legal requirements to comply therewith. However, the court in administering justice in the case allowed crediting of payments and obligations claimed in the answer.

That brings us to the question of the right to enter judgment on the pleadings.

The obligation to pay the sum of $10 per week until the minor child reaches the age of 17 years would require that payment for a period of 406 weeks, or a total of $4,060. The obligation of the bond is $1,500. The answer sets up that in obedience to .the order of the court, and the requirements of the bond, be paid into court the sum of $960, and, in addition thereto, be bad paid for the support and maintenance of the child, to her custodian, a further sum of $600, making a total payment of $1,560. Defendant’s further allegation states that the sum total of bis payments has exceeded the sum of $1,500, the amount of the bond.

Counsel for defendant evidently was of the opinion that the obligation of the bond required him to only pay $1,500, and that, when be bad paid an amount- in excess thereof, the obligation of the bond was complied with, and there would be no default. That is not the point. The bond is to require the payment of $10 per week until the child arrives at the age of 17, which would amount to approximately $4,000. Allowing the payments claimed in the answer, there would still be an obligation of $2,500, to secure payment of which the bond would stand.

The trial court, on the pleadings, gave credit for all payments claimed in the answer, and was therefore warranted in rendering the judgment on the pleadings that it did.

It is argued in the brief of defendant in error that the answer does not set forth all of the payments or obligations entered into by the defendant on behalf of the child, and that proof would be required. There is no allegation in the answer of any further obligations or liability than the payments allowed. He says in the answer that the sum total of bis payments has exceeded the sum of $1,500. The amounts set forth in a prior paragraph, and allowed, exceed the sum of $1,500. He asked that he be given credit for the amount of payments he had heretofore made, as hereinbefore set forth. That was done.

It is argued that plaintiff should be required to show proof that it had expended the money claimed. Again the answer is that that is not a condition of the bond. The default is the failure to comply with the bond, and, in' justice, defendant has been given credit for all that he claims to have expended as against the obligation on the bond, and there still remains a default of more than the requirements of the bond. The court, therefore, did not err in rendering the judgment that it did on the pleadings.

Judgment affirmed.

Buchwalter, P. J., and Cushing, J., concur.  