Wheat v. Catterlin, 23 Ind. 85

Wheat v. Catterlin

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 *86judgment, directed to one Armantrout, the sheriff of Clinton county, who levied the same on certain personal property of Hamilton, the execution defendant, which levy was made by the direction of Catterlin. On September 21, 1858, Benjamin T). Wheat and John Hamilton brought their action of replevin, in said court, against Catterlin and Armantrout, to recover the property so levied on, which property was, by virtue of process directed to the coroner of said county, seized by him, and delivered to Wheat and Hamilton, the then plaintiffs in -replevin; and thereupon Wheat, Hamilton, and Tennam executed the bond now in suit, whereby they undertook and promised to “ prosecute their said action of replevin with effect and without delay, and return the property in controversy to Catterlin and Armantrout, if return thereof should be adjudged by the court; and that they would pay to them, Catterlin and Armantrout, all and such sum or sums of money as they might recover in said action,” etc. To this action of replevin Catterlin and Armantrout, the then defendants, appeared. There was a trial, in which the jury rendered a verdict in these words: “We, the jury, find for the defendants.” Upon the verdict thus rendered, the court gave judgment in favor of the defendants, and against Wheat and Hamilton, the then plaintiffs, for costs. It is averred that Wheat and Hamilton have not, nor has either of them, at any time, returned said property, or any part thereof, to Catterlin and Armantrout, or either of them; that the. same was, at the time it was taken by Wheat and Hamilton worth $1,000; and that, by reason of the taking of said property by them, and their failure to return the same as aforesaid, Catterlin has been prevented from collecting his judgment against William Hamilton, etc., which judgment remains in full force, etc. Defendants in this suit demurred to the complaint; but their demurrer was overruled, and they excepted. They then answered by a denial and three special paragraphs. The second and third make no point in the. case, and will not, therefore, be further *87noticed. The fourth paragraph avers that the jury trying the issue in the replevin suit rendered simply a verdict for the defendants in that suit, in these words: “We, .the jury, find for the defendantsand did not find the property in the plaintiffs or defendants, nor did they find or assess the value thereof, etc., wherefore, etc. To this paragraph there was a demurrer overruled, and the plaintiffs excepted. On motion, the cause was continued, and was so continued at three successive terms of said court, until the June term thereof, 1861, at which term the plaintiffs asked and obtained leave to file a supplementary complaint, wherein they allege “ that after the proceedings in said action of replevin as mentioned in the original complaint—viz: at the April term, 1861—the same court (on the complaint of Catterlin and Armantrout, after due notice to Wheat and Hamilton, and after both parties had appeared, and waived a jury) reviewed its judgment and proceedings in the replevin suit; and thereupon found that the property mentioned in the original complaint, as having been seized at the suit of Wheat and Hamilton, was worth $1,300, and that Catterlin and Armantrout had sustained damages to the amount of $10 for the taking and detention thereof. Upon this finding, the court rendered judgment for the return of said projserty; also, for the damages aforesaid, and for costs, etc. And further, in the supplementary complaint, it is averred that Wheat and Hamilton have wholly neglected, and refused to return the property and pay the judgment for damages, etc. Defendants demurred to this supplementary complaint. Pending the submission of the demurrer, the plaintiffs by leave, etc., further amended. This amendment is, in substance, a recital of the original and supplementary complaints, and will not, therefore, be set out in detail. Defendants then refiled their demurrer to the amended complaint, which demurrer was overruled, and thereupon they answered: 1. By a denial. 2. That the cause of action set forth in the complaints did not accrue *88before the commencement of this suit, for this, that the judgment in replevin as alleged in the original complaint shows no breach, nor was any breach of the conditions of the bond made the foundation of this action, and that the proceedings and judgment had in review were had long after the commencement of the present suit, etc. Demurrer to this second paragraph sustained, and defendants excepted. The issues were submitted to the court, who found for the plaintiffs $451; and, having refused a new trial, rendered judgment, etc.

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 *89pendency of the action on the bond; and being so reviewed and corrected, it seems to us that the court, in the exercise of its discretionary power, had the right to allow the proceedings and judgment on review to he added, by supplementary complaint, as an amendment to the original complaint. The amendment thus allowed was evidently consistent with a just determination of the action on the bond, and did not “ substantially change the claim” set up in the original complaint. 2 G-. & H. 118, sec. 99. Eor aught that appears in the record, the merits of the case have been properly tried and determined, and the result is, the judgment must be affirmed.

R. P. Davidson, for appellants. James N. Simms and McDonald § Roaehe, for appellee.

Per Curiam.—Judgment affirmed, with five per cent, damages, cost, etc.