5 Colo. 206 | Colo. | 1880
This was an action upon a replevin bond executed with sureties by the defendant in the replevin proceeding, líobert L. Hopkins, under the act of 1876. Sess. Laws 1876, p. 116.
The errors assigned question the correctness of the rulings in sustaining the demurrer.
A preliminary question is raised by the defendants in error, whether the plaintiff in error has any standing in this court, no exception having been reserved in the court below to the final judgment.
, Several'decisions of this court are cited to show that in such case the judgment is not the subject of review here. The cases, however, only go to the extent of holding that where no exception is saved to the judgment, in a cause tried to the court without a jury, such judgment cannot be reviewed upon the evidence. These decisions were based upon a construction of section 24, chapter 70, R. S., the former practice act. The same provisions were re-enacted by the legislature, February 24,1879, and are in force. Session Laws 1879, page 225.
In Patton v. Coen & Ten Broecke C. M. Company, 3 Col. 265, this court, in construing the statute referred to, held that while it precluded the review of a judgment upon the testimony where an exception to the judgment had not been reserved at the trial, it did not operate to prevent the consideration of errors assigned, based upon exceptions duly reserved during the progress of the trial; and that all assignments of error based upon exceptions properly taken at the trial may be considered by the Supreme Court in such case. ¥e are not, therefore, precluded from considering the errors here assigned, and will proceed to review the rulings of the court below upon the demurrer to the complaint. ■
The second cause of action was for failure to return a portion of the property. The demurrer was probably sustained to this cause of action, because it did not appear from the
The third and fourth causes of action will be considered together. Both are for the recovery of damages, and must be considered as based upon a breach of that condition of the bond which provides for the payment of all damages that may accrue to the plaintiff by reason of the unlawful detention of the property. It appears from the allegations of the complaint in the present case that on trial of the replevin suit, plaintiff in error was adjudged to have been entitled to the possession of the property mentioned in the writ at the time
It was competent for the court in that action to have inquired into the right of possession of the property down to the time of judgment, and to have given damages for its detention to the same date, if the plaintiff was entitled thereto. Wells on Replevin, Sec. 496.
The complaint in this case does not contain sufficient of the proceedings in the former action to explain why judgment was entered in the form mentioned, and why damages were not allowed plaintiff in error for the detention up to date of judgment. Enough appears, however, to show that the subject of damages for detention of the property was an issue in that proceeding. It follows that to the extent of the recovery which might have been obtained in that suit, if no error intervened, the matter is res adjudieata. The same matters litigated there cannot be re-examined in a suit upon the bond. Warren v. Mathews, 18 Ill. 83.
It is not sought in this proceeding to recover the same damages for which judgment was entered in the original suit, but damages for detention subsequently accruing. But in the absence of an order for the return of the property to the plaintiff in error, we are not able to say that any such damages accrued. Certainly if the Colorado Springs Company was not entitled to have the property returned, it is not entitled to damages for its detention.
The conclusion is, that plaintiff in error has not stated such a case in either its second, third or fourth cause of action as entitles it to recover, and that as to all of them the demurrer was properly sustained. If such right in fact existed in favor of plaintiff in error, it should have availed itself of the opportunity granted by the court below to so amend its complaint as to mate the right apparent. Declining to amend, it is concluded by the former proceedings.
Judgment affirmed.