Hutton v. Denton

2 Ind. 644

• Court: Indiana Supreme Court
• Decided: May 15, 1851
• Status: Published

Opinion

THIS was an action of debt brought by Denton against Hutton and War cup. The suit was founded on a replevinbond executed by the defendants, which bond was conditioned that said Hutton would prosecute the replevin-suit to effect, and return the property replevied if such return should be adjudged. Breaches — first, that the replevinsuit was not prosecuted with effect; secondly, that the now plaintiff recovered judgment in that suit for a return, but that no return had been made.

Pleas — 1. Nul tie! record of said judgment; 2. That said judgment was obtained by fraud.

Replication to the first plea, that there is such record. General demurrer to the second plea, and the demurrer sustained.

The plaintiff entered a nolle prosequi as to the first breach.

The issue on the first plea was found for the plaintiff; and the damages were assessed at 55 dollars. Judgment accordingly.

The judgment was afterwards affirmed by this Court; and the defendant has filed a petition for a re-hearing.

The only question is as to the validity of the second plea. We are of opinion that that plea is insufficient. If the judgment mentioned in the second plea was obtained by fraud, tbe defendant’s remedy is by a bill' in chancery.

The petition for a re-hearing is, therefore, overruled.