Rauh v. Waterman

• Decision Date: 30 October 1901
• Docket Number: 3,356
• Citation: 61 N.E. 743,29 Ind.App. 344
• Parties: RAUH ET AL. v. WATERMAN ET AL
• Court: Indiana Appellate Court

61 N.E. 743

29 Ind.App. 344

RAUH ET AL. v. WATERMAN ET AL

No. 3,356

Court of Appeals of Indiana

October 30, 1901

Transfer denied June 18, 1902, Reported at: 29 Ind.App. 344 at 347.

From Marion Superior Court; Vinson Carter, Judge.

Action by Leopold Rauh and others against Christian F. H. Waterman and others on a replevin bond. From a judgment for defendants, plaintiffs appeal.

Affirmed.

N Morris and L. Newberger, for appellants.

OPINION

COMSTOCK, J.

On May 23, 1893, Joseph S. Finch & Co., merchants, replevied four barrels of whisky from the appellants and the Indianapolis Warehouse Company, and the same were delivered to them upon the execution of the following undertaking: "We undertake to and with the defendants that the plaintiffs will return the property taken from them by virtue of the writ of replevin in the above entitled cause if a return thereof be adjudged by the court in said action, and that plaintiffs will pay to defendants all such sums of money as may be recovered against them in said action." Signed by appellee Christian F. H. Waterman, against whom this action is brought. On November 4, 1893, the replevin proceedings were dismissed by plaintiffs, but the whisky was not returned. This action is brought upon the undertaking signed by Waterman to recover from him the value of the whisky. There was an answer in two paragraphs, the first being a general denial. The second alleges that at the times mentioned in the complaint, Joseph S. Finch & Co. were the owners of and entitled to the whisky in question. At the request of appellees, the court made a special finding of facts and stated conclusions of law thereon, on which findings and conclusions of law judgment was rendered in favor of defendants, appellees here, for costs.

The errors assigned are that the court erred in its conclusions of law and in overruling appellants' motion for a new trial. The alleged breach of the undertaking is that the plaintiffs in said action of replevin dismissed the same without returning said property, or paying any sum of money realized from the sale of said property to these plaintiffs, or to any other of the defendants in said action. The special findings show that the action of replevin was dismissed by the plaintiffs therein, and costs therein fully paid by them, without prejudice, and without any trial of said cause upon the merits, and the title to, ownership, and right of possession of said four barrels of whisky was in no way determined in said cause.

The undertaking is defective in that it does not provide, as required by § 1290 Burns 1901, § 1270 Horner 1901 that the plaintiffs will prosecute their action with effect. Section 1235 Burns 1901, § 1221 Horner 1901, is intended to cure defects of the character here presented. It is as follows: "No official bond entered into by any officer, nor...