Keenan v. Washington Liquor Co.

• Citation: 8 Idaho 383,69 P. 112
• Parties: KEENAN v. WASHINGTON LIQUOR COMPANY
• Decision Date: 24 May 1902
• Court: Idaho Supreme Court

69 P. 112

8 Idaho 383

KEENAN v. WASHINGTON LIQUOR COMPANY

Supreme Court of Idaho

May 24, 1902

PLEADING-AMENDMENT OF-PRACTICE.-Before issue joined the plaintiff may, by an amended pleading, truly state the facts upon which the action is based, although there is more or less apparent conflict between the facts as alleged in the original, and in such amended pleading.

DEMURRER-CERTAINTY IN PLEADING.-A special demurrer to a complaint in an action upon an undertaking upon claim and delivery, on the ground of uncertainty, because the complaint describes the property involved in such replevin suit in general terms, properly overruled.

DOCUMENTARY EVIDENCE-FILES OF INFERIOR COURTS.-The records and files of inferior courts are admissible in evidence, and the objection that they are inadmissible and incompetent and should be proved by copies was properly overruled by the trial court.

OBLIGATIONS OF UNDERTAKING ON CLAIM AND DELIVERY.-The obligations of the principal and sureties in an undertaking on claim and delivery, which undertakes for the prosecution of the action and for a return of the property, if a return thereof be adjudged, are broken by the failure of the plaintiff in the replevin suit to prosecute the said action, and the sureties on the undertaking are liable for such breach of the undertaking, where the property, possession of which was procured by the plaintiff in the replevin suit by virtue of said undertaking and proceedings on claim and delivery, was sold and converted by said plaintiff, and the said goods were not returned, after demand, to the defendant in said replevin suit, notwithstanding no judgment for the return of said goods and chattels was rendered in the replevin suit, and the same was dismissed because of failure to prosecute the same by plaintiff.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Affirmed, with costs to the respondent.

McFarland & McFarland, for Appellants.

The rules of pleading, as we understand them, will not permit a party to shift his position, and by amendment allege a different cause of action, particularly after argument on demurrer to the original pleading. (2 Black on Judgments 632; Ogden v. Moore, 95 Mich. 290, 54 N.W. 899; Freeman v. Michigan State Bank, Harr. (Mich.) 311; Metropolitan Nat. Bank v. St. Louis Dispatch Co., 38 F. 57; Winter v. Quarrels, 43 Ala. 692.) Admission of original pleadings in evidence. Neither of the documents the admission of which is herein complained of, was material or relevant to the issues in this action, and could not properly be taken from the custody and files of said justice and probate courts and filed in this court. If they were material at all, certified copies of them should have been introduced in evidence. (Idaho Rev. Stats., secs. 4759, 4760; 2 Black on Judgments, 625; Newell on Malicious Prosecution 454; Mudge v. Yaples, 58 Mich. 307, 25 N.W. 297; Brintnall v. Foster, 7 Wend. (N. Y.) 103.) The judgment of the justice court gave Gilman everything he asked for, and having failed to allege in said answer the taking of the property by said claim and delivery proceedings, and having failed to demand a return thereof, and the judgment having failed to provide for a return thereof, the respondent cannot maintain this action. (Idaho Rev. Stats., secs. 4399, 4453; Gould v. Scannell, 13 Cal. 431; Pico v. Pico, 56 Cal. 453; Banning v. Marlean, 101 Cal. 238, 35 P. 772; Capital Lumber Co. v. Hall, 10 Or. 204.)

George W. Tannahill and I. N. Smith, for Respondent.

Where the evidence is not contained in the record, it will be presumed in support of a judgment for plaintiff that it was rendered on sufficient evidence. (Rumney v. Detroit etc. Cattle Co., 129 Mich. 644, 89 N.W. 573 (decided March 18, 1902); Toulouse v. Burkett, 2 Idaho 288, 13 P. 172; Riborado v. Quang Pang Min. Co., 2 Idaho 144, 6 P. 125.) The demurrer was properly overruled. The Washington Liquor Company failed to prosecute its action. This was an absolute breach of the bond, for which it and its sureties were liable. It failed to prosecute the action at all, and also failed to prosecute the action successfully. Our statute means that the action in replevin shall be prosecuted successfully in order to protect the bondsmen. (McCormick etc. Machine Co. v. Fisher, 63 Kan. 199, 65 P. 233; Manning v. Manning, 26 Kan. 101 (Brewer, J.); Cox v. Sargent, 10 Colo. App. 1, 50 P. 201; Cobbey on Replevin, secs. 1250, 1253, 1254, note 10; Mills v. Gleason, 21 Cal. 274 (280); 2 Notes on Cal. Cases; Idaho Rev. Stats., sec. 18; Idaho Rev. Stats., secs. 4759, 4760; Cal. Code Civ. Proc., sec. 911; Blair v. Hamilton, 32 Cal: 49; Jolly v. Folz 34 Cal. 321; Liebman v. McGraw 3 Wash. 520, 28 P. 1107; Rev. Stats., sec. 5974.) The evidence shows this case was not prosecuted. This is a distinct breach of the bond making the bondsmen liable. (3 Blackstone's Commentaries, tit. "Non Prosequiter," p. 296; Manning v. Manning, 26 Kan. 101.) The bond at bar was assignable. (Cal. Civ. Code, sec. 954; Cal. Code Civ. Proc., secs. 1582, 1583; Pomeroy on Rights, 144-146; Ilaho Rev. Stats., sec. 2891; Cobbey on Replevin, sec. 1269; Gallup v. Lichter, 4 Colo. App. 296, 35 P. 985.)

QUARLES, C. J. Sullivan and Stockslager, JJ., concur.

OPINION

QUARLES, C. J.

The respondent in this action (plaintiff below) commenced an action in the probate court of Nez Perces county against C H. Russell, as defendant, to recover an alleged indebtedness due to respondent from said Russell, and caused a writ of attachment to be issued in said action, which was levied upon certain goods and chattels comprising the stock in the saloon conducted by said Russell, and thereafter such proceedings were had that the respondent recovered a judgment against said Russell for the sum of $ 163.75. After the levy of said attachment upon said chattels, the appellant the Washington Liquor Company commenced an action in the justice's court of West Lewiston precinct against Dudley Gilman, the constable, o recover said chattels, alleging ownership thereof, and executed a bond on claim and delivery, with the appellants John W. Denny and J. Alexander as sureties thereon, conditioned that the said Washington Liquor Company would prosecute the said action, and that it would return the said chattels to the said defendant if the return thereof be adjudged by the court, and for the payment to defendant of such sum as may, from any cause, be recovered against the plaintiff in said action, not exceeding the sum of $ 200; and upon order duly indorsed upon the affidavit on claim and delivery in such cause the sheriff of Nez Perces county, acting under the instructions of the Washington Liquor Company, seized said chattels, and took them from possession of the constable who had attached same, and was holding same under the attachment levied in the action brought by the respondent against the said Russell. Upon the return day of the summons in said action of claim and delivery, the plaintiff therein not being ready for trial, the trial was postponed by agreement of parties to the following day, to wit, until September 11, 1900, at 4 o'clock P. M. Afterward, and at said time, to wit, Tuesday, September 11, 1900, at 4 o'clock P. M., the plaintiff in said action, the Washington Liquor Company, being represented by one John A. Guyer, had no evidence whatever to offer in support of its claim, whereupon defendant offered some oral evidence, after which said defendant, by his attorney, asked that the cause be dismissed, whereupon the same was dismissed by judgment entered in said justice's docket, awarding the defendant therein his costs, taxed at five dollars and twenty cents. This action is brought upon the said undertaking on claim and delivery, and was originally commenced in the probate court of Nez Perces county, and removed therefrom to the district court upon an application for change of venue. After the cause reached the district court, a demurrer was interposed to the complaint, and by the court sustained, after which the respondent filed his amended complaint. In the original complaint it was alleged that the action for claim and delivery aforesaid was determined adversely to the said appellant the Washington Liquor Company. In the amended complaint the breach of said undertaking on claim and delivery is alleged as follows: "That the conditions of the said bond have been broken in this: 1. That the defendant herein, the Washington Liquor Company, principal in said bond, failed to...