Randal v. State ex rel. Massy

1 Ind. 395

• Court: Indiana Supreme Court
• Decided: July 1, 1849
• Status: Published

Opinion

THIS was a suit upon the same bond described in the record of the suit instituted by The State ex rel. Hummed v. Comparet et al., in which the judgment was reversed by this Court at the November term, 1845

(1). The proceedings were exactly similar, and the judgment in this case is in like manner erroneous, in consequence of there being a fatal variance between the bond produced on oyer and that described in the declaration.

It appears that, after the decision of this Court in the case above mentioned, the plaintiff below appeared in the Circuit Court, and, upon his motion, the plea of the defendants setting out the bond on oyer, was ordered to be so amended as to make the instrument set out in the plea correspond with that described in the declaration. We cannot consider the defect remedied, by this proceeding. The Court had no power to make such an alteration in the record after the judgment, in the absence of the defendants and without their consent.

The judgment is reversed with costs. Cause remanded for a new trial.

See 7 Blackf. 553.