Meyer v. State ex rel. Day

• Decision Date: 09 October 1890
• Citation: 125 Ind. 335,25 N.E. 351
• Parties: Meyer et al. v. State ex rel. Day.
• Court: Indiana Supreme Court

125 Ind. 335

25 N.E. 351

Meyer et al.

v. State ex rel.Day.

Supreme Court of Indiana.

Oct. 9, 1890.

Appeal from circuit court, Floyd county; C. P. Ferguson, Judge.

Rev. St. Ind. 1881, § 396, provides that “the court may at any time, in its discretion, and upon such terms as may be deemed proper for the furtherance of justice, direct the name of any party to be added or struck out.”A. Dowling, for appellants. C. L. & H. E. Jewett, for appellee.

Berkshire, C. J.

This was an action instituted on the official bond of the appellant Meyer, as clerk of the circuit court of Floyd county, his co-appellants being sureties on the said bond. The complaint was demurred to, the demurrer overruled, and an exception reserved. An answer was filed in two paragraphs, the first of which was a denial. The second paragraph was demurred to, the demurrer sustained, and an exception saved. The cause was thereafter submitted to the court, and resulted in a special finding for the appellee. The appellants excepted to the court's conclusions of law, and filed their motion for a new trial, which the court overruled, and they saved an exception, and thereupon the court rendered judgment for the appellee. The cause was originally commenced in the name of Ezekiel R. Day as plaintiff, and progressed to issue and trial in his name as plaintiff. Afterwards, and before the final conclusion of the trial, the complaint, upon the motion of Day's attorneys, was so amended as to make the state of Indiana, on the relation of Ezekiel R. Day, the plaintiff. The motion to amend was sustained and the amendment made, over the objection of the appellants, and an exception reserved by them. The several errors assigned are (1) overruling the demurrer to the complaint; (2) sustaining the demurrer to the second paragraph of answer; (3) the court erred in its conclusions of law; (4) in sustaining the motion of the plaintiffs to amend the complaint; (5) in overruling the motion for a new trial. The motion for a new trial assigns but two reasons: (1) The finding of the court is not sustained by sufficient evidence. (2) It is contrary to law. The complaint was technically bad, until the amendment complained of was made; but the amendment cured the infirmity. The amendment worked no substantial harm to the appellants. It did not change the nature of the cause of action. Apparently, the appellants were as well prepared to make any defense going to the merits of the action after, as before, the amendment, and, if not so prepared, it was incumbent upon them to show wherein they would be prejudiced. The amendment was in furtherance of justice, and within the letter, as well as the spirit, of section 396, Rev. St. 1881. The ruling of the court is not assigned as a reason for a new trial, and it may be that the record does not properly present the question which the ruling involves, but we have not stopped to consider the question of practice. See Rev. St. 1881, § 559; Mannix v. State, 115 Ind. 245, 17 N. E. Rep. 565; Morgan v. Hyatt, 62 Ind. 560.

The ruling of the court in overruling the motion for a new trial involves no question that does not arise upon the second and third errors assigned,-the sustaining of the demurrer to the second paragraph of answer, and the conclusions of law. The second and third assigned errors raise, substantially, the same question. At this point it is proper to give a short history of a former proceeding leading up to the present action, together with some of the attending circumstances. In the spring of 1887, the New Albany & Eastern Railway Company instituted a proceeding under section 3907, Rev. St. 1881, to appropriate certain real estate owned and held by the relator of the appellee, and such proceedings were had that the appraisers, appointed to assess the damages caused by such contemplated appropriation, filed their assessments in writing with the clerk of the Floyd circuit court, amounting to the sum of $3,110, and immediately thereafter the said sum was paid by the said railway company to the appellant Meyer, as the clerk of said court, for the use of the relator, and has ever since been retained by him. The relator, not being satisfied with said assessments, filed his exceptions thereto, and appealed therefrom to the circuit court. Afterwards, upon the trial of the issues raised by said exceptions, the damages occasioned by said appropriation were found to be in the sum of $5,128.43, and judgment was entered accordingly. Thereafter, and at the same term of the court, the railway company perfected its appeal to this court, which appeal was still pending when the present action was instituted, tried, and determined. Soon after the rendition of said judgment, the said railway company paid to the appellant Meyer, as clerk of said court, on account of said judgment, the sum of $2,018.43, the difference between the amount that had theretofore been paid to him and the sum for which said judgment had been rendered. That immediately after the payment of said $3,110 to the said clerk, the said railway company entered upon and took possession of the real estate appropriated by said...