Cooke v. Williamson

11 Ind. 242 | Ind. | 1858

Perkins, J.

Suit upon a replevin-bond. The bond was executed on the 25th day of January, 1855, under the following circumstances: Williamson, the plaintiff, was in possession of the treasurer’s office of Knox county, under claim of right. Cooke claimed to be entitled to the office in place of Williamson, and to try his right, commenced an action of replevin against Williamson, to recover the books and papers of the office. The books, &c., were taken by the sheriff, by virtue of the writ of replevin, and delivered to Cooke. On procuring the writ of replevin, Cooke gave a bond, with Judah and Denny as sureties, conditioned for the prosecution of his suit, &c. He failed in the suit. Williamson now sues Cooke and his sureties on the replevin-bond, the same, as we have stated, being dated January 25,1855. The complaint, by way of introduction, recites that Cooke occupied the office and collected taxes before he brought the replevin suit.

All the defendants answered by a general denial of each and every allegation in the complaint.

Judah and Denny answered in a second paragraph, “that all the money collected by said Cooke, which the plaintiff is entitled to percentage on, was collected before the filing of the bond mentioned in plaintiff’s complaint.”

To the answer, there was no reply. We think none was necessary to complete the issue. The suit being upon the bond, went only for rights that accrued under the bond. The introductory matter was not issuable. The paragraph in the answer which alleged that all Cooke’s liability-accrued before the bond was executed, was an argumentative denial that any liability accrued under the bond sued on, and, hence, amounted to nothing more than the general denial. The bond did not, it may be remarked, purport to cover antecedent liability.

The next entry of record is, that the defendants were called and came not, but made default, and thereupon the Court referred the cause to a commissioner to take an account. No judgment upon default was entered.

The next entry states that the plaintiff, by his attorney, and the defendants, by Judah and Denny, their attorneys, came, and also the commissioner, who made his report; “ and the Court, after hearing the report of said commissioner, and the arguments of counsel, and proof herein, being sufficiently advised,” &c., “find for the plaintiff in the sum of,” &c., to which the defendants excepted and prayed an appeal to the Supreme Court. No bill of exceptions was filed showing the proof made to the Court upon the hearing, and no motion for a new trial was interposed.

S. Judah, for the appellants. D. M’Donald and A. G. Porter, for the appellee.

We must regard this case as one tried by the Court, by consent of parties, upon the general denial of the complaint, and in which no motion for a new trial was made, and the evidence is not presented in the record ⁽¹⁾.

Per Oivriam.— The judgment is affirmed, with 1 per cent, damages and costs.

(1) See Reno v. Crane, 2 Blackf. 217; Lurton v. Carson, id. 464; Stump v. Fraley, 7 Ind. R. 679; Doe v. Herr, 8 id. 23, 24; Zehnor v. Beard, id. 96; Priest v. Martin, 4 Blackf. 311; The State v. Swarts, 9 Ind. R. 221; McDonald v. Stader, 10 id. 171; Griffin v. Lynch, id. 217; McGregor v. Axe, id. 362; Filson v. Blecker, id. 544.