Brandt v. The State ex rel. Boyer
| Decision Date | 31 March 1897 |
| Docket Number | 2,194 |
| Parties | BRANDT ET AL. v. THE STATE, EX REL. BOYER |
| Court | Indiana Appellate Court |
From the White Circuit Court.
Affirmed.
Guthrie & Bushnell and John R. Ward, for appellants.
A. W Reynolds, A. K. Sills and Will R. Wood, for appellee.
This was an action against Charles Brandt, as principal, and Lorenzo D. Taylor and Isaac G. Burns, as sureties, upon the bond of said Brandt as a licensed retailer of intoxicating liquors, for injury sustained by Mattie Boyer to her means of support on account of the use of intoxicating liquors sold to her husband, Joseph Boyer, as alleged in one paragraph of the complaint (which contained two paragraphs), and on account of intoxicating liquors sold to one George Jessup, as alleged in the other paragraph of the complaint, said intoxicating liquors having been so sold by said Brandt in violation of the act of March 17, 1875, regulating the sale of intoxicating liquors, the action being based on section 20 of said act, section 7288, Burns' R. S. 1894 (5323 Horner's R. S. 1896), and the provision of said act alleged to have been violated being that of section 15, making it a misdemeanor to sell, barter or give away any spirituous, vinous or malt liquors to any person at the time in a state of intoxication.
The defendants united in an answer of general denial.
After the case had been twice continued to the next term, the parties, by their attorneys, appeared, and the cause was tried by jury, the verdict and judgment being for the appellee in the sum of eight hundred and thirty-two and one-third dollars.
In the complaint, as originally filed, and as it remained until the close of the evidence in chief for the plaintiff, said Mattie Boyer was named as the plaintiff. After the evidence in chief for the plaintiff had been introduced, the plaintiff, by leave of court, and over the objection of the defendants separately, amended the complaint by inserting the words "State of Indiana, on the relation of," immediately before the name of Mattie Boyer in the title and also in the first line of the complaint, these being the only changes in the complaint.
It is claimed on behalf of the appellants that the court erred in permitting such amendment of the complaint.
The action on the bond should have been brought in the name of the State, on the relation of the injured person, and therefore it was subject to technical objection as originally filed; but the amendment did not affect the issue on trial. The nature of the cause of action was not changed. As is said in Meyer v. State, ex rel., 125 Ind. 335, 25 N.E. 351, where this question is decided contrary to the view taken of it by the appellants in the present case, "The amendment was in furtherance of justice, and was within the letter as well as the spirit of the statute," citing section 396, R. S. 1881, being section 399, Burns' R. S. 1894 (396, Horner's R. S. 1896). See also, Wabash, etc., R. W. Co. v. Morgan, 132 Ind. 430, 437, 31 N.E. 661; Sandford Tool & Fork Co. v. Mullen, 1 Ind.App. 204, 27 N.E. 448; Burns v. Fox, 113 Ind. 205, 14 N.E. 541.
After the complaint had been so amended, the appellants, Taylor and Burns, each separately filed his affidavit for a continuance. The court refused a continuance, and the trial proceeded.
A verdict having been returned for the plaintiff, the appellants jointly moved for a new trial, the refusal of the court to grant the defendants a continuance being assigned as one of the grounds of the motion, which was overruled.
It does not appear that the appellant Brandt asked for delay, but it appears that the other two appellants separately did so, and that upon the overruling of their separate motions for a continuance, they excepted to this ruling.
The ground stated in the motion for a new trial, "refusing to grant defendants a continuance," did not, in fact, exist.
There was no ruling in relation to a continuance asked by the appellant Brandt, or to which he excepted. The overruling of the motions for a continuance, made by the other appellants, to which they had excepted, could not be a sufficient ground of a motion on behalf of the appellant Brandt for a new trial.
It is a familiar rule, that there is no error in overruling a joint motion which is not good as to all who join in it. Robertson v. Garshwiler, 81 Ind. 463; Boyd v. Anderson, 102 Ind. 217, 1 N.E. 724; Carnahan v. Chenoweth, 1 Ind.App. 178, 27 N.E. 332.
If the manner in which it was sought to preserve the question as to a continuance should be ignored, still we could not regard the action of the court as available error.
It is provided by statute that no cause shall be delayed by reason of an amendment, excepting only the time to make up issues, but upon good cause shown by affidavit of the party or his agent asking such delay; and that the affidavit shall show distinctly in what respect the party asking the delay has been prejudiced in his preparation for trial by the amendment. Sections 397, 398, Burns' R. S. 1894 (394, 395, Horner's R. S. 1896).
Each of the sureties, in his affidavit for a continuance, while not alleging that he had not been served with summons, or that he had not knowledge prior to the trial of the pendency of the action, stated that it had been his understanding that the suit was against the defendant Brandt, individually, and could in no way affect the sureties; and there were other allegations tending to show that the affiants had been proceeding upon such theory.
As before remarked, the cause of action was not varied in any respect, and the issue on trial was not changed by the amendment. It did not render necessary or admissible any different evidence on behalf of either party. If, therefore, the sureties acted, or neglected to act upon the assumption that it was not a suit on the bond against them as well as against their principal, they did so at their own risk.
Each of the sureties in his affidavit stated that he could not make an active defense at that term, but did not show by statement of facts that he could make a better defense if granted a delay.
The affidavits did not show distinctly in what respect the parties asking the delay had been prejudiced in their preparation for trial by the amendment. See Hubler v. Pullen, 9 Ind. 273; Cox v. Stout, 85 Ind. 422.
An application for a continuance is addressed to the sound discretion of the court, and where, as here, there does not appear to have been an abuse of such discretion whereby injustice was done, the refusal of the continuance is not available error. Whitehall v. Lane, 61 Ind 93; Belck v. Belck, 97 Ind. 73; ...
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