Jamieson v. Capron
| Decision Date | 14 June 1880 |
| Citation | 95 Pa. 15 |
| Parties | Jamieson <I>versus</I> Capron, to use, &c. |
| Court | Pennsylvania Supreme Court |
Before MERCUR, GORDON, TRUNKEY, STERRETT and GREEN, JJ. SHARSWOOD, C. J., and PAXSON, J., absent
Error to the Court of Common Pleas of Warren county: Of May Term 1880, No. 211.
R. Brown, for plaintiff in error.—The substitution of the new plaintiffs was without notice to defendant, deprived him of a valuable right, and released him from his suretyship. It modified his contract. The bond was to indemnify against the original and not against the new plaintiffs. No affidavit accompanied the motion to amend, and no evidence was given to show any mistake in bringing the action, or that the new had any joint interest or privity of title with the original plaintiffs: Kille v. Ege, 1 Norris 102. If these are new suits then there have been no judgments recovered in the original suits, and there can be no recovery on the bonds; Eldred v. Bennett, 9 Casey 183; Chaffee v. Sangstone, 10 Watts 269: Gibbs v. Bartlett, 2 W. & S. 29. The records only were amended, the bonds were not. When defendant executed the bonds the claim of the executors was all the right in his contemplation. The extent of his engagement was that the right should be established against the title of the executors, not against others. The liability of Jamieson was increased by the substitutions, and he was thereby released. Hocker v. Woods's Ex'rs., is distinguishable from this case.
W. D. Brown and Clark & Noyes, for defendant in error.— The bonds were not given to the plaintiffs in the replevin cases, but to the sheriff; the condition was not that they should be void in case the plaintiffs failed to recover judgment, but in case the defendants, who claimed to own the property, should appear to said actions, make good their claim and indemnify the sheriff in the premises. This is the substantial point of the condition, and is equivalent to having judgment in their favor: Chaffee v. Sangstone, 10 Watts 265.
Property bonds, although unknown to the common law of England, are an established feature of judicial proceedings in Pennsylvania. The right of a defendant in replevin who claims and pleads property to retain the goods upon giving such bond is undoubted. Being judicial obligations they are to be construed with reference to all the incidents of judicial proceedings.
Defendant was presumed to know that the court could and would permit amendments to enable parties to have a trial upon the merits. Nor was the extent of his liability unlimited or uncertain. Not every one having or claiming title to the goods could be made plaintiff by amendment, but only such as the law permitted. The obligation of the surety was co-extensive with the suit in which it was given. There was no change in the cause of action; no strangers were added to the record, the new parties being joint heirs with the original parties, and all claiming as heirs. The title of Stephen Duncan was the foundation of the claim after as well as before the amendment. The court must be presumed to have been satisfied of the propriety of the amendment by sufficient evidence, even though nothing appears of record.
The contention of the plaintiff in error is that he was discharged from liability as surety on the property bonds in consequence of the amendments in the replevin suits, made without authority of law, as he claims, and without his knowledge or consent. The actions of replevin were brought by Henry P. Duncan, Samuel Duncan and Stephen Duncan, executors of the last will and testament of Stephen Duncan, deceased, against Eli H. Dunn et al., who claimed the property replevied, gave bonds to the sheriff in the usual form, and pleaded non cepit and property, upon which issue was joined. Subsequently, on application of the plaintiffs, an amendment was allowed in each case, by which the words "executors of the last will and testament" were stricken out, and the words "heirs at law" substituted, and the names of other heirs at law were added as plaintiffs. As thus amended, the cases were tried and resulted in judgments for the plaintiffs, who then brought the present suit on the property bonds, in the name of the sheriff to their use against the plaintiff in error, and judgment was obtained against him for the amount recorded in the actions of replevin.
If the amendments were unauthorized, it will scarcely be pretended that the surety in the property bonds would not be discharged. But so far as the records in the replevin suits given in evidence in this case have been brought to our notice, there is nothing to show that the amendments were either unauthorized or irregular; on the contrary they appear to have been within the letter and spirit of our statute of amendments. They consisted, as we have seen, first in changing the character in which the plaintiffs sued from executors to heirs at law, and secondly, in adding the names of other heirs...
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