Sandford Tool & Fork Co. v. Mullen

• Decision Date: 28 April 1891
• Citation: 1 Ind.App. 204,27 N.E. 448
• Parties: Sandford Tool & Fork Co. v. Mullen.
• Court: Indiana Appellate Court

1 Ind.App. 204

27 N.E. 448

Sandford Tool & Fork Co.

v.Mullen.

Appellate Court of Indiana.

April 28, 1891.

Appeal from superior court, Vigo county; J. M. Allen, Judge.

Buena V. Marshall and McNutt & McNutt, for appellant. Faris & Hamill, for appellee.

Robinson, J.

This was an action for false imprisonment. The appellant was the defendant in the court below. The complaint alleges that the appellant's officers and agents caused and procured appellee's arrest and imprisonment on the charge of larceny falsely preferred. The appellant answered the complaint in three paragraphs: First, general denial; second, alleging compromise and settlement of the cause of action; third, justification of the arrest and imprisonment. A demurrer was sustained to the third paragraph of the answer, and excepted to. The appellee replied by general denial to the second paragraph of the answer. The cause was tried by a jury. After the evidence had been heard, and while the court was considering the instructions, appellee asked leave to amend his complaint and tendered an amended complaint, which the court, over the objection and exceptions of appellant, allowed filed. Appellant demurred to the amended complaint. The demurrer was overruled and excepted to. Appellant then asked leave to refile answer, which the court granted as to the first and second paragraph and denied as to the third, and the appellant excepted. Appellant then objected to proceeding under the submission had under the pleadings as originally formulated. Court overruled the objection, which was excepted to. Before the court proceeded to instruct the jury the appellant requested the court to direct the jury to return a special verdict, which request the court denied and overruled for reasons hereinafter shown in the record. Appellant asked that instructions 1 to 5 be given, which were refused by the court. The court, on its own motion, charged the jury. The jury returned a verdict for appellee, assessing his damages at $800. Appellant filed a motion for new trial, which was overruled and excepted to, and then made a motion in arrest of judgment, which was overruled and excepted to. Thereupon the court rendered judgment upon the verdict.

Before considering the assignment of errors as discussed by the appellant, and for the purpose of ascertaining what questions are saved in the record, we will determine the claim made by the appellee, that the evidence on the trial of the cause is not properly in the record. The appellee's counsel, among other reasons why the evidence is not in the record, press for our consideration that it is stated in the bill of exceptions, “and this is all the testimony given to the jury;” and that there is no statement “that this was all the evidence given in the cause.” It is unnecessary to look to other objections urged by the appellee to the bill of exceptions. Under the authorities, we cannot consider the evidence in the record. McDonald v. Elfes, 61 Ind. 279-284;Printing Co. v. Morss, 60 Ind. 153-157;Sassengut v. Posey, 67 Ind. 408-412;Ingel v. Scott, 86 Ind. 518-520;Barley v. Dunn, 85 Ind. 338;Kleyla v. State, 112 Ind. 146, 13 N. E. Rep. 255; Mattinger v. Railway Co., 117 Ind. 136, 19 N. E. Rep. 733. We will now proceed to consider the errors discussed by the appellant, which are saved in the record, in the order in which they are presented. It is contended by the appellant that the trial court erred in allowing appellee to amend his complaint after the evidence was all in, by which amendment appellee set out a new and different cause of action from that set forth in the complaint, on which issue had been joined, and the evidence heard. After the evidence was concluded, and while the court was hearing discussion on instructions which appellant had requested should be settled and determined by the court before argument of the cause, the appellee asked leave to amend his complaint to conform to the evidence, which request the court, after having taken the same under advisement, and the appellee having tendered his amended complaint and asked leave to file the same, allowed said amended complaint to be filed over the objections and exceptions of the appellant. The amended complaint differed from the one upon which the issue was joined in this, to-wit, the words “that the plaintiff had committed the crime of larceny” not appearing in the amended complaint. The amended complaint made no material difference, as the material facts in the actions for false imprisonment are the unlawful arrest and wrongful imprisonment. The crime with which the party is charged can make no difference if the arrest was unlawful and the imprisonment wrongful. The amended complaint did not change the form of the action, or plead a new or different cause of action. It is well settled as a rule of practice in this state that “it is within the discretion of the court to permit the complaint or other pleading to be amended during the trial of a cause; and in such case, unless the record shows by affidavit or other evidence that the opposite party was misled or prejudiced by such amendment, and in what respect, the appellate court will conclude that he was not prejudiced either by such amendment or by leave of the court to make such amendment.” Burr v. Mendenhall, 49 Ind. 496-498;Railway Co. v. Jones, 103 Ind. 388, 389, 6 N. E. Rep. 8; Child v. Swain, 69 Ind. 230-238;Town of Martinsville v. Shirley, 84 Ind. 546;Burns v. Fox, 113 Ind. 205, 14 N. E. Rep. 541. Appellant claims that the court erred in overruling appellant's objection to the cause proceeding on the amended complaint and the issue joined thereon, and in directing said cause to proceed without reswearing the jury. There is nothing in the record that saves the question attempted...