25 Ind. App. 293 | Ind. Ct. App. | 1900
—This was an action in replevin in which appellant was plaintiff and appellee defendant. The complaint is in the ordinary form, and as its sufficiency is not questioned no further reference need be made to it. The case was put at issue by an answer in denial and submitted
The only questions raised by the assignment of errors and discussed by appellant are: (1) The action of the court in permitting the appellee to file the additional paragraph of answer, and (2) that the court erred in overruling the demurrer to such additional paragraph of answer. The decision of the questions thus raised necessitates a brief statement of the facts disclosed by the record and the material averments of the pleading in question. September 20, 1897, Charles Pepper and Louis Pepper commenced an action in attachment in the Eranklin Circuit Court against Seymour J. Merrell and Edward Personett, and a-writ of attachment was issued and levied upon the property described in appellant’s complaint. The- appellee herein was the sheriff of said county and charged with the execution of the writ. November 6, .1897, appellant commenced this action in the same court. Summons was served, appellee appeared, and appellant, on December 9, 1897, moved for a change of venue from the county, and the venue was changed to the court below. December 11, 1897, the first above mentioned action was tried in the court where it was commenced, resulting in a verdict and judgment for the plaintiffs, and by which it was adjudged that the property attached—being the same as described in the complaint in
It is urged by appellant’s counsel that, under the facts disclosed by the record, it was an abuse of discretion of the trial court to allow appellee, after the close of the evidence, to file the additional paragraph of answer. The rule in this State has long been settled that it is within the discretion of the trial court to allow the filing of additional pleadings after the issues are closed, and even after the close of the evidence, and such action will not be reviewed except where it appears that there has been a plain abuse of such discretion.
In Bever v. North, 107 Ind. 544, the court by Elliott, J., said: “The matter of permitting the opening of the issues for the purpose of filing additional pleadings is to a
Another rule is that where the trial court has permitted amendments to be made to pleadings during the progress of the trial, and after the conclusion of the evidence, the adverse party must affirmatively show that he was prejudiced thereby, before he will be entitled to a reversal on that ground. See Diltz v. Spahr, supra, and cases there cited.
In the case before us, no showing is made that appellant was prejudiced by the amendment. Our conclusion on this point is that thp court was not in error in permitting appellee to file the additional paragraph of answer.
Much that we have said is applicable to the second proposition discussed. The additional paragraph of answer was good against a demurrer for want of facts, for at least three reasons: (1) It disclosed the fact that during the introduction of evidence it developed that appellant had employed counsel in the ease of Pepper and Pepper against Merrell and Personett, to protect his interest in the identical property in controversy here, he at.tlie time and in that case claiming that he was the owner. (2) It avers facts that show that he was privy to that action and was bound by the judgment. See Burns v. Gavin, 118 Ind. 320; Palmer v. Hayes, 112 Ind. 289. (3) It averred the rendition of a judgment in a judicial proceeding showing that it had been solemnly adjudged in such proceeding that the title to the
Anything’ which tends to defeat the plaintiff’s claim of title, where he asserts his claim of ownership by an action in replevin, may be proved under the general denial (see Aultman v. Forgey, 10 Ind. App. 397; Shipman, etc., Co. v. Pfeiffer, 11 Ind. App. 445), and it certainly follows that specially pleading any such facts in defense could not be harmful to the plaintiff.
The court did not err in overruling the demurrer to the additional paragraph of answer. Judgment affirmed.