Simon v. Aubrey

Townsend, C. J. The record in this case purports to contain a motion for continuance on account of the absence of witnesses, and for change of venue,-’ filed by defendant in the court below, and the ruling of the court thereon, which is alleged as error. This motion, and the ruling of the court and the exceptions of the defendant should have been brought on the record to this court by the bill of exceptions. Jett vs. Sittle (case immediately preceding,) (64 S. W. 572. ) Appellant contends that the court below erred in permitting the-plaintiff to amend his complaint in the district court on appeal, alleging the increase of the cattle replevied by plaintiff. Section 4151, Mansf. Dig. (Ind. T Ann. St. 1899, § 2831), provides that “the same cause of action, and no other, that was tried before the justice, shall be tried in the circuit court upon the appeal. ” This statute has been repeatedly construed by the supreme court of Arkansas. That court held in Railway Co. vs Hall, 44 Ark. 376, that: “The circuit court may permit amendments and allow new issues to be made, keeping clear of new causes of action and set-offs not presented in the justice’s court. Mansf. Dig. §§ 4151, 1367; Hall vs Doyle, 35 Ark. 445; Chowning vs Barnett, 30 Ark. 560.” In Birmingham vs Rogers, 46 Ark. 254, the court further held that “upon an appeal from a justice of the peace the plaintiff may amend his action in the circuit, court by adding a claim against the defendant which was not included in the original action before the justice.” See, also, Railway Co. vs Richter, 48 Ark. 353, 3 S. W. 56. United States commissioners in the Indian Territory are ex officio justices of the peace. .28 Stat. c. 145, §.4. It is evident from the foregoing authorities that, whether the amendment complained of is considered as an amendment to the original cause of action or as a new cause of action, the plaintiff would, in either event, be permitted to recover the [683] increase of the three head of cattle originally replevied in the one suit. We do not think this amendment alleges a new cause of action. It simply amends the complaint to show the facts as they exist at the time of trial in the district court, where the case is tried de novo upon its merits. It does not appear from the judgment rendered that plaintiff was given the increase of the cattle, but we presume the $82.18 damages was intended as the value of such increase. In Cobbey, Repl. § 397, it is said: “Replevin brought for a female slave entitled the plaintiff to her child born after the commencement of the action. Replevin for a cow entitles the plaintiff, if successful, to judgment for return of the cow and two calves, born since she was wrongfully taken from his possession, and an alternative judgment for her value and that of her increase at the time the judgment was rendered. The issue follows the mother.”. See Sedg. Dam. (8th Ed.) § 539. The evidence in the case is not brought to this court in the bill of exceptions, and therefore it is impossible to determine whether the court below committed error in overruling defendant’s motion for new trial and in arrest of judgment. The judgment of the court below- is affirmed. Gill, Clayton, and Raymond, JJ., concur.