Blackburn v. Crowder

• Decision Date: 17 November 1886
• Citation: 9 N.E. 108,108 Ind. 238
• Parties: Blackburn and others v. Crowder and others.
• Court: Indiana Supreme Court

108 Ind. 238

9 N.E. 108

Blackburn and others

v.Crowder and others.

Supreme Court of Indiana.

November 17, 1886.

Appeal from Lawrence circuit court.

Action on replevin bond.

L. A. Cole and J. H. Bradley, for appellants. A. Anderson and M. Nye, for appellees.

Mitchell, J.

There is but one error assigned on the record before us, and that is that the court erred in overruling a demurrer to the complaint. The action was founded on a replevin bond. The complaint sets out that in March, 1883, the appellees instituted proceedings in the circuit court of Lawrence county against Monroe Blackburn, for the recovery of certain personal property, and that they procured the property to be seized by the sheriff upon a writ issued in that behalf. Blackburn thereupon, as principal, with the other appellants as sureties, executed an undertaking to the sheriff, conditional for the delivery of the property to the plaintiffs, without injury or damage, in case it should be adjudged that the plaintiffs were entitled to the possession thereof, and also for the payment of all sums of money which might be recovered against Blackburn in that action. The complaint avers that such proceedings were thereafter had as that the plaintiffs recovered a judgment against the defendant Blackburn for $490 damages, and $264.95 costs. The breach assigned is that the defendant wholly failed to pay the damages and costs so recovered.

The first objection urged against the complaint is that it does not identify or show, with sufficient certainty, that the original or a copy of the bond sued on was filed with the complaint. An examination of the record leads us to conclude that this point is not well made. The averment that a bond was duly executed on a given date, by certain parties, is followed by these words, “a copy of which is herewith filed,” after which the conditions of the bond alleged to have been filed are stated. Following the complaint, copied into the transcript, is a copy of a bond which corresponds in all essential particulars with that alleged to have been filed with the complaint. It has been repeatedly ruled that an instrument which appears in the transcript thus identified and referred to is within the requirement of the statute which prescribes that the original or a copy of any instrument upon which an action is founded must be filed with the complaint. Northwestern Mut. Life Ins. Co. v. Hazelett, 105 Ind. 212; S. C. 4 N. E. Rep. 582, and cases cited.

As a further objection to the complaint, it is said the conditions of the bond, as they are recited in the body of the complaint, do not correspond with those which appear in the copy of the bond filed therewith. As it seems to us, there is no substantial variance. The complaint recites that “said defendants undertook to return said property to the plaintiffs, if said suit should thereafter be decided in favor of said plaintiffs, and also pay all damages and costs adjudged in favor of said plaintiffs.” The corresponding condition of...