Becovitz v. Saperstein

• Decision Date: 05 October 1910
• Docket Number: 7,124
• Citation: 92 N.E. 551,46 Ind.App. 339
• Parties: BECOVITZ v. SAPERSTEIN ET AL
• Court: Indiana Appellate Court

92 N.E. 551

46 Ind.App. 339

BECOVITZ v. SAPERSTEIN ET AL

No. 7,124

Court of Appeals of Indiana

October 5, 1910

From Lawrence Circuit Court; James B. Wilson, Judge.

Action by Abraham Becovitz against Abraham Saperstein and another. From a judgment for defendants, plaintiff appeals.

Reversed.

Joseph E. Henley and R. H. East, for appellant.

Charles Martindale, for appellee United States Fidelity and Guaranty Company.

OPINION

COMSTOCK, C. J.

Appellant instituted this action on a replevin bond executed by appellees in a replevin action brought by appellee Saperstein against Frank Drehoble and the Southern Indiana Railway Company.

The complaint alleges the bringing of the action of replevin to get possession of certain chattels, the failure of defendants to give bond within the statutory time, and that thereafter for the retention of the possession of said property, said Abraham Saperstein executed his bond, a copy of which is made a part hereof, with his codefendant, the United States Fidelity and Guaranty Company as surety thereon, conditioned that he would prosecute his action with effect, and return said property to the defendant in said replevin action if return should be adjudged by said court; that said bond was delivered to and approved by said sheriff, and said property delivered by said sheriff to said defendant Saperstein; that such proceedings were thereafter had in said cause that at the term, 1902, of the Lawrence Circuit Court plaintiff was by order of the court, made defendant in said cause, and said replevin bond became effective as to him and for his benefit, as well as the other defendants mentioned in said bond; that a trial of said cause was had and judgment rendered in favor of plaintiff for the return of the property; that no part of said property, which was of the value of $ 432.75, has been returned to this plaintiff, defendant in said replevin cause, and no part of said judgment has been paid or satisfied.

Appellee guaranty company's separate demurrer for want of facts was sustained, and, appellant refusing to plead over, judgment was rendered thereon, that appellant take nothing by this action and that appellees recover their costs.

The errors assigned are (1) the sustaining of the demurrer of appellee guaranty company to the amended complaint; (2) rendering judgment in favor of appellees; (3) rendering judgment in favor of appellee Saperstein on the issues of said cause.

It is claimed by appellee guaranty company that "when the replevin bond was...