Colorado Springs Co. v. Hopkins

5 Colo. 338 | Colo. | 1880

Per Curiam.

The first reason assigned why a rehearing should be granted in this cause is, that this court in the opinion filed said: “The property being in the possession of the defendant, Hopkins, at the time of the trial of the replevin suit, if the right of possession was then in the plaintiff in error, the judgment should have provided for its return,” and this counsel suggests .is error in fact, as plaintiff had possession of part of the property at time of trial of replevin suit. A reference to said opinion will show that this language was used in discussing the correctness of the ruling of the district court in sustaining the demurrer, interposed to the second cause of action in the complaint. This cause of action was—“ Plaintiff says that said Hopkins has not delivered to it the whole of said chattels, but failed to deliver a portion of said chattels amounting in value to the sum of five hundred dollars.” Ve say in respect to this property that there being no order for its return, it does not appear that there was a breach of the replevin bond as to it.

The condition of the bond, as set out in the complaint in this cause, is: “ Now if the said R. L. Hopkins shall pay all costs which have accrued or may accrue in this said action of replevin, and deliver said property to the said Colorado Springs Company in case return thereof shall be awarded, and-pay all damages that may accrue to said plaintiff, the Colorado Springs Company, by reason of the unlawful detention of said property, then this obligation to be void, otherwise to remain in full force and effect.”

Counsel insists that under this condition of the bond defendant in error and his sureties were liable for the damages caused by the wrongful detention. But it does not appear from the present complaint that Hopkins was adjudged in the replevin suit guilty of a wrongful detention of any chattels after the issuance of the writ of replevin, and it shows affirmatively that he recovered damages in that proceeding for the detention prior to the issuance of the writ.

According to the allegations of the complaint in this cause, the finding and judgment in the replevin suit was “to the effect that plaintiff was at the time of the issuance of said writ of replevin entitled to the possession of said chattels; 'that plaintiff also recovered damages for the detention of said chattels after demand therefor, and before the issuance of said writ to the amount of one dollar, and for costs of suit amounting to the sum of fifty dollars and eighty cents.”

The replevin suit was brought to try the right of possession to the entire property. The judgment was that the plaintiff in error was entitled to the possession of the property at the time the writ of replevin issued, and damages were allowed for detention up to that time. But it does not appear from this complaint that it was adjudged in that proceeding that said plaintiff was entitled to possession of any portion of the property after the writ issued, or at the time of the trial, and there is no averment in this complaint that the merits of the controversy respecting the property were not adjudicated in the replevin suit. The replevin bond was executed after the seizure of the property on the writ of replevin. Damages for detention having been rendered up to that time, and no adjudication that the property was wrongfully detained afterward, it is difficult to perceive upon what principle of law the sureties can be held liable for a wrongful detention under the allegations of this complaint. It fails to state a cause of action in this behalf, and the demurrer was, therefore, properly sustained.

The last reason assigned why the rehearing should be gran ted is that “ the court erred in offirming the judgment without remanding the cause and granting leave to amend.”

It is not the practice of this court to reverse the decisions and judgments of nisi grins courts when upon review no errors are found therein. Ample opportunity for amendment of pleadings is afforded in those courts, and parties declining to avail themselves thereof when their pleadings are adjudged bjr such courts to be insufficient, bring their causes here upon their own judgment, and at their own peril.

Petition for rehearing .denied.