2 Colo. 651 | Colo. | 1875
To the sixth and seventh pleas first put in a demurrer was sustained, and plaintiffs in error took leave to amend. Subsequently other pleas were filed, in which a new defense was set up, and defendant in error again demurred. By filing new pleas under leave to amend, the intention to abandon those first put in was evinced, and the judgment of the court, as to them, is not now open to review. Dickhut v. Durrell, 11 Ill. 72; Dean v. Gecman, 44 id. 287. The first of the additional pleas to which a demurrer was sustained, is based upon section 14 of the act relating to replevin (R. S. 540), which provides that in an action upon a replevin bond, when the merits of the case have not been tried in the action of replevin, the defendants may plead the fact, and their title to the property in controversy in. bar of the action. To establish this defense, it was alleged that the matters in controversy in the replevin suit were submitted to arbitration, and thereby the replevin suit was dismissed ; that the arbitrators heard the evidence and made an award upon which the court entered judgment; that the merits of the replevin suit were not tried in that action, and that defendants were the owners of the property, and entitled to the possession of the same. Assuming that the submission to arbitrators was unconditional as stated in the plea,
Therefore, if the cause was removed from the court by agreement of parties, as it must have been if the submission contained nothing from which it may be inferred that the parties intended otherwise, no action can be maintained against a surety in the bond, the fact being well pleaded. There is a difficulty, however, as to the plea, which is or should be in the form of a special traverse. Confessing that the replevin suit was begun and the bond given as alleged in the declaration, the pleader doubtless intended to deny that the suit was prosecuted to judgment, as was also alleged in the declaration. This was done by setting up the submission to arbitration, and consequent discontinuance, which is not a direct denial of any thing alleged in the declaration, but a statement of matters inconsistent with the truth of what is there alleged. Steph. PI. 179. Because of this omission, the demurrer was properly sustained, although the plea appears to be otherwise sufficient. Upon other issues the cause was brought to trial before a jury, and the submission to arbitrators, together with their award, was put in evidence. Upon another trial a question may arise upon the submission, which should now be discussed in order to
As, therefore, it cannot be doubted that a plaintiff in replevin may, by confessing judgment in favor of the defendant, bind himself and his sureties to the performance of the
Reversed.