Walpole's Administrator v. Carlisle

Gregory, J. The appellee sued the appellant in the court below for negligence and misconduct of the defendant’s intestate, as an attorney and counselor at law, in the management of an action in the Marion Circuit Court on a replevin bond, wherein the appellee was the plaintiff, and Orrick, Geisendorff, Hanway, Parker, and Howard were the defendants. The plaintiff, in his complaint, averred, that after suit was commenced Walpole carelessly lost the bond which had been placed in his possession; that, some two years after the commencement of the action, he suffered a nonsuit without the knowledge or consent of the plaintiffj by which the plaintiff was subjected to the payment of the costs; that Walpole concealed the fact from the plaintiff for some four years, and then recommenced the action as on a lost bond; that when the case came on for trial, the defendant’s intestate, without the knowledge or consent of the plaintiff, dismissed the action as to Hanway and Geisendorff, who were the only solvent .defendants, .and took a judgment [416] against the other defendants, by means whereof the plaintiff wholly lost his claim. J. S. Haney and N. VanHorn, for appellant. J. T. Dye and A. G. Harris, for appellee. The case is here on the evidence. The only cause assigned in support of the motion for a new trial is, that the verdict of the' jury is against the evidence. The records of the three actions, the original action‘of replevin and the two on the bond, were introduced in evidence ; it was proved that the bond was found in Walpole’s office after his death; it Ivas admitted that Walpole dismissed the action as against Hanway and Geisendorff, without the knowledge or consent of the plaintiffj and that they were the only solvent defendants. The records show that the first action on the bond was commenced in April, 1859, and dismissed in 1861; that the second action was commenced in 1865, and disposed of in 1866. Ilanway and Geisendorff had denied the execution of the bond under oa$h. There was no evidence offered that the plaintiff was prepared to prove the execution of the bond as to them on the trial of the action, and it is claimed that this omission is fatal to the plaintiff’s fight to recover. The jury were warranted in finding, under the evidence, that the defendant’s intestate was guilty of negligence. It may be, that the damages assessed by the jury aro excessive ; but this was not made a ground for the new*trial in the court below, and, therefore, cannot be examined here. Judgment affirmed, with costs.