116 Ind. 189 | Ind. | 1888
complaint in this case averred that, in the year 1870, one William H. Taggart was elected treasurer of Brown county, and became duly qualified as such by, amongst other things, executing an official bond, with one Milton Fleenor as one of his sureties; that afterwards a large amount of money came into his, the said William H. Taggart’s hands, as such treasurer, which he converted to his'own use; that, on the 13th day of November, 1872, an action was commenced, in the name of the State, on the re
A demurrer was sustained to the complaint, and the defendant. had final judgment upon demurrer.
Section 609, R. S. 1881, provides that “Judgments on bonds payable to the State of Indiana shall bind the real estate of the debtor from the commencement of the action,” and this provision was in force when the bond in suit was executed and when, in any view of the case, this action was commenced.
In the case of Shane v. Francis, 30 Ind. 92, it was held that a surety upon an official bond was a debtor within the meaning of this section.
This complaint was filed, and this appeal is prosecuted; upon the theory that the action upon which the judgment appealed from was rendered was really commenced on the 1st day of June, 1875, when the new or amended complaint was filed.
As has been made to appear, the action upon the original bomplaint was commenced on the 13th day of November, 1872, and this original complaint was afterwards, on the 1st day of June, 1875, superseded by the filing of a new complaint upon the same cause of action, with the name of one of the relators omitted, and containing an additional para
A complaint, or other pleading, may be amended : First. By a new pleading. Second. By filing an additional paragraph. Third. By interlineation or mutilation. 1 Works Pr., section 696.
The new complaint, filed as above, was therefore nothing more than an amendment of the original complaint, and hence not the commencement of a new action.
In the case of School Town of Monticello v. Grant, 104 Ind. 168, it was said that, as a rule, an amendment of a complaint relates back to the time at which the pleading was filed, and that it is only where the amendment sets up some claim or title not previously asserted, and involving the statute of limitations, that a different rule applies. As to when such a different rule may apply, see the case of Lagow v. Neilson, 10 Ind. 183!
The new complaint under consideration set up no new. cause of action, and no new matter involving the statute of limitations. It consequently related back to the time of the filing of the original complaint, and became simply an amended complaint, taking the place' of the one first filed, and performing the office which the original complaint was designed to perform.
The omission of the name of the board of commissioners as a relator in the new complaint did not change the nature of the action or the purpose had in view in prosecuting it. It made the county auditor the only relator in the cause, as he ought to have been in the first instance, and continued the suit for the benefit of the county represented by the board.
The j udgment is affirmed, with costs.