Rutherford v. Moore

24 Ind. 311 | Ind. | 1865

Gregory, J.

Moore sued William MayneS and the appellant on three several bonds, executed by Maynes as principal, and Lutherford as surety. The first was an injunction bond; the second an appeal bond, in an appeal to this court from an order of the Union Circuit Court, dissolving the injunction; the other was a bond given by the defendants, in the court below, on a writ of error from the Supreme Court of the United States to this court, in the same case.

J. S. Reid, and J. M. Gardner, for appellants.

The first error complained of is a misjoinder of causes of action. There is nothing in this, but if there was a misjoinder, that could not be assigned for error' in this court. 2 G. & H., § 52, p. 81.

The next error complained of is that the damages assessed by the court below are excessive. The injunction restrained Moore from having a writ of possession executed, issued by the Auditor of State, in his favor, against Maynes, for lands sold at a sinking fund sale. The appellee had a right to recover for the use and occupation of the land for the time he was kept out of the possession thereof by the wrongful proceedings of Maynes.

The last error assigned is that the judgment is against the appellant, when it ought to have been against Maynes and Rutherford. For this error the judgment must be reversed. The bonds were the joint obligations of Maynes and Rutherford, and were so treated by the appellee in bringing suit thereon. The defendants below both appeared and plead to the action, the finding of the court was for the plaintiff, and judgment should have followed against both defendants.

The judgment is reversed, with costs, and the cause remanded to said court, with instructions to render judgment, on the finding, against both defendants.