Larsh v. Estep
| Decision Date | 06 December 1856 |
| Citation | 8 Ind. 263 |
| Parties | Larsh v. Estep |
| Court | Indiana Supreme Court |
From the Wayne Circuit Court.
The judgment is reversed with costs. Cause remanded.
J Perry, G. W. Julian and J. B. Julian, for appellant.
J. S Newman and J. P. Siddall, for appellee.
Assumpsit bye Larsh against Estep, commenced on the 11th of August, 1852. The declaration contains three counts. The first count is upon a special contract for the sale of land. The second alleges that, on, etc., the defendant was indebted to the plaintiff 723 dollars, by virtue of an award made pursuant to a submission entered into between the parties. The third is a common count for land sold. Proper issues being made, the case was submitted to a jury, who found for the defendant; and over a motion for a new trial, there was judgment.
The record contains a bill of exceptions which shows that during the trial the plaintiff proved the award alleged in the second count, and then proved the execution of a submission under seal, in pursuance of which the award was made, and thereupon offered to read the submission in evidence to the jury. To this the defendant objected on the ground that the action was assumpsit; that the issues were made up in February, 1853, and as the submission was under seal, it could not be read in evidence in support of the second count. The Court sustained the objection,--whereupon the plaintiff moved for leave to amend his declaration by striking out the word assumpsit, without the payment of costs, except the costs of his motion and of the amendment. The motion was overruled.
This action, though it was tried since the revision now in force took effect, was commenced, and its issues completed, under the code of 1843. The old and new systems of procedure, so far as they relate to the questions arising in this record, are essentially dissimilar. Hence, the question results, under which system is the correctness of the rulings of the Circuit Court to be tested? In support of the action of the Court, it is insisted that the cause being at issue under that of 1843, the then existing rules of pleading and practice are applicable to each step in the proceeding until final judgment.
Assuming this position to be correct, debt, and not assumpsit was the proper action upon an award, where the submission was under seal. 1 Saund. Pl. and Ev. 178.--1 Chit. Pl. 101. And the action being assumpsit, the proposed evidence was inadmissible, because it did not properly apply to the form of action. Its admission would have at once shown that the plaintiff had misconceived his remedy.
But was the amendment allowable under the old system? The code of 1843 enacts that, "At any time before the commencement of the trial, the Court, for the furtherance of justice, may give leave to amend any process, pleading, or proceeding either in form or substance." R....
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