23 Ind. 326 | Ind. | 1864
O’Dea and Dunfe, the appellees, sued Story and others, the appellants, on the following obligation :
“ George Kinney
v.
Dennis O’Dea, et al.
j [ )
In the Whitley Circuit Court.
“¥e undertake that the plaintiff shall duly prosecute this action with effect, and without delay, and return the property in controversy to the defendants, if a return be adjudged by the court, and pay to the defendants all such sums of money as they may recover against the plaintiff' in the action, for any cause whatever.
“ (Signed) George Kinney, [seal]
Andrews & Oakley, [seal] James Story. [seal]
“ Approved by me, this September 8,1857.
“B. F. Beeson, Coroner, W. C.”
A demurrer to the complaint was overruled. Issue, trial, verdict, and judgment for the plaintiff below. The defendants appeal.
The first question presented by the appellants’ brief arises upon the ruling of the court in overruling the demurrer to the complaint. The complaint alleges that, on the 7th of September, 1857, the said Kinney sued out of the clerk’s office of the Whitley Circuit Court, in said state, a certain writ and order, directed to the coroner of said co.unty, against the plaintiffs, for the recovery of certain black-walnut lumber, to-wit: four car loads of the value of $1,000, the personal goods and chattels of said O’Dea, and then in the possession of the plaintiffs; that the coroner by virtue of said writ, and order, took possession of
■ The objection urged to the complaint is, that it does not show any right or cause of action in favor of Dunfe, one of the plaintiffs. We think it does. It alleges that Kinney sued out his writ to recover the property against both O’Dea and Dunfe, and that, upon the dismissal of that suit in the Whitley Circuit Court, a judgment was rendered against Kinney in favor of the “defendants” for cost. It is true that it is averred in the complaint that the lumber belonged to O’Dea, but it is further averred that it was at the time in possession of both the defendants, O’Dea and Dunfe, and that the- writ was against both, and the bond executed to them jointly.
The order of the court upon the dismissal of the suit was, that the property should be returned to O’Dea; but that fact does not show that Dunfe had no interest in the suit on the bond.
It is, however, insisted that the complaint in the original suit was against O’Dea alone, and not against Dunfe, and therefore Dunfe was not a defendant in that suit. If the affidavit filed in the case, and the writ issued thereon,
Kinney answered separately, the other defendants joined in their answer. The first paragraph of each answer is a general denial. The fourth paragraph of Kinney’s answer, and the third paragraph of the answer of the other defendants, are to the second breach, alleging a failure to return the lumber, and aver that after the lumber was delivered to Kinney by the officer, and on the same day, the said O’Dea, by force and arms, violently and unlawfully took the said lumber out of the possession of said Kinney, and violently and forcibly deprived him thereof, wherefore he could not make return thereof to said O’Dea. The court sustained demurrers to these paragraphs, which is also assigned for error.
The facts stated would not bar the action, but would perhaps be sufficient to bar a recovery for the value of the property, or go in mitigation of damages to that extent. The facts alleged could be given in evidence under the general denial, and hence the appellants sustained no injury by the ruling of the court.
The evidence is made part of the record by bill of exceptions, and shows that the matters alleged in the answers referred to were not true in fact. One Wheeler, a3 the agent of Kinney, purchased the lumber of O’Dea, to be delivered on cars furnished by Wheeler, at Hunts
After the jury returned a verdict for the plaintiffs, the defendant moved the court for a new trial. The motion was overruled, and judgment rendered on the verdict of the jury.
The plaintiffs in error insist that the damages are excessive, and for that reason a new trial should have been granted. The motion is founded on the assumption that the replevin suit was for only twenty thousand feet of lumber, and, though a larger amount may have been seized and delivered under the writ, that the bond only covered the twenty thousand feet. The complaint and affidavit filed by Kinney in the replevin suit describes the lumber thus: “Twenty thousand feet of black-walnut lumber, loaded on four cars at the Huntsville depot.” The evidence shows that Wheeler, acting as the agent of Kinney,-claimed all the lumber on the four cars; that it was all black-walnut lumber, and had all been loaded on the cars, under the contract of sale by O’Dea to Kinney. The suit was for the four, car-loads of lumber, which Wheeler, who filed the affidavit, estimated to contain twenty thousand feet; but the jury was fully justified, from the evidence, in finding that there were at least twenty-four thousand feet. The replevin suit seems to have been used as a means of obtaining the possession of the lumber without paying for it according to the contract; and when that end was attained, the suit was voluntarily dismissed, leaving O’Dea to his
The judgment of the Circuit Court is affirmed, with ten per cent, damages and costs.