23 Ind. 85 | Ind. | 1864
This was au action by Catterlin against Benjamin B>. Wheat, John Hamilton, and Jesse Tennam, upon a replevin bond. The complaint alleges these facts: Catterlin, on June 30,1858, recovered a judgment in said Circuit Court against one William Hamilton for $330.66. On tbe 1st of July then next following, au execution was issued on said
As we have seen, the original verdict in the action of replevin was simply for the defendants; did not find the value of the property x’eplevied; nor did the judgment ixi that action award a return. Hence it is ■ ai'gued that, when the present suit was comxxxenced, the obligees in the bond had no cause of actioxx, and that the proceedings and judgment on review, having occux’red after this suit was commenced, were improperly allowed as an amendment to the original complaint, because that amendment constituted a cause of action, accruing after the commeneemeixt of the suit. "We do not coxxcur in this reasoning. The vexxlict ixx replevin was for the defendaxxts. This was in effect a finding that Wheat axid Hamilton unlawfully took the properly; and that Catterlin and Armantrout were entitled to possess it; and thus there was shown, by the verdict, a breach of the bond; because there was a failure to prosecute the “ actioxx of replevin with effect.” 9 Ind. 514; 12 Ind. 404. The verdict, it is true, did not authorize a judgment for a return; still, the original complaint on the bond contained a cause of action, and, in the absence of the amendment, the plaintiffs ixx replevin would have ■ been entitled to damages; but what, in such case, would have been the measure of the damages is xxot now an important inquiry; indeed, the main question to settle is, was the amendment correctly allowed ? "We do not perceive axxy reason why the proceedings in the action of replevin could not be reviewed and corrected during the
Per Curiam.—Judgment affirmed, with five per cent, damages, cost, etc.