
    The Colorado Springs Co. v. Hopkins.
    1. While this court will not review a judgment upon the testimony when an exception to the judgment has not been reserved at a trial to the court, it will consider errors assigned based upon exceptions duly reserved during the progress of the trial.
    2. In an action on a replevin bond for the delivery of the property ‘ ‘in case the return thereof shall be awarded,” the breach assigned must be as broad as the condition of the bond ; to allege a failure to deliver, merely, held bad on demurrer.
    3. The same matters litigated in a replevin suit may not be re-examined in a suit upon the replevin bond.
    
      Error to District Gov/rt of El Paso County.
    
    The plaintiff below, in its complaint, alleged: that it was a corporation; “That about the first day of April, A. D. 1876, the defendant, Robert L. Hopkins, leased from, plaintiff the following described property, to-wit: The hotel known as ‘The Manitou House’ and appurtenances, situated in block ‘0,’ in the town of Manitou, in the county aforesaid, together with certain furniture and other personal property in and about said premises; that pursuant to said lease said Hopkins then and there entered upon said premises and took possession of said chattels.
    That said lease terminated on the first day of April, A. D. 1877, and that the plaintiff then and there and on said day became entitled to the possession of said premises and of said chattels; that on the day last aforesaid, and after the expiration of said lease, the plaintiff on the premises aforesaid demanded of said Hopkins possession of said premises and chattels; that said Hopkins then and there refused to give possession of said premises, and refused to give possession of said chattels to plaintiff; that plaintiff, at divers other times and places, demanded possession of said property; that said Hopkins always refused to give possession thereof to plaintiff, although said Hopkins then and there well knew that by the terms of said lease the plaintiff was then entitled to the.possession of said property; that thereupon and. on the twenty-sixth day of May, A. D. 1877, the plaintiff sued out of the District Court of El Paso County, in the third judicial district of the State of Colorad7, a writ of replevin against said Hopkins for the recovery of said chattels; that pursuant to said writ, Peter Becker, the sheriff of said county, to whom said writ was directed for service, took possession of said chattels; that after the seizure of said chattels under said writ, as aforesaid, the said Hopkins being desirous of retaining the same, the defendants executed and delivered to said sheriff their bond or obligation in writing, which bond was given pursuant to statute, to enable the defendant, Hopkins, to retain possession of said chattels, which said chattels are specially enumerated in said bond, whereby defendants acknowledge themselves to be bound unto said Becker as such sheriff, in the penal sum of seven thousand eight hundred and twenty dollars, for payment of which they bound themselves, their heirs, executors and administrators, jointly and severally.
    That under said bond there is a condition written, which condition, together with the signatures and seals of the defendants and sheriff’s approval, is in words and figures following, to-wit:
    
      1 And whereas, the said Hopkins desires to retain possession of the said goods and chattels until the final determination of the said action of replevin.’ ‘ Now, if the said Hopkins shall pay all costs which have accrued or may accrue in this said action of replevin, and deliver said property to the said Colorado Springs Company, in case return thereof shall be awarded, and pay all damages that may accrue- to said plaintiff, The Colorado Springs Company, by reason of the unlawful detention of the said property, then this obligation is to be void, otherwise to remain in full force and effect.’
    R. L. Hopkins, [seal.]
    A. D. Craigue, [seal.]
    D. J. Martin, [seal.]
    Chas. Walker, [seal.]
    John H. Bacon, [seal.]
    Charles R. Bissell, [seal.]
    
      Approved and accepted by me, on this 29th day of May, A. D. 1877. . Peter Becker, Sheriff.’
    That said bond was on the twenty-ninth day of May, A. D. 1877, and after the seizure of the chattels therein specified, accepted and approved by said sheriff, who thereupon and then, and by reason of the execution and acceptance of said bond, redelivered said chattels to said Hopkins, who held possession thereof thenceforth and until the eighth day of September, A. D. 1877. That said Hopkins took possession of said hotel and chattels under one and the same lease, and that by the terms thereof plaintiff was at the time of the issuance of said writ entitled to the possession of said hotel and chattels.
    That said chattels so replevied, as aforesaid, comprised the entire furniture and other personal property used in and about the running of said hotel; that by reason of the redelivery of said chattels and the detention thereof as aforesaid, the plaintiff was deprived of the means of operating said hotel for the space of several months; that upon the redelivery of said chattels to said Hopkins as aforesaid, the said Hopkins opened said hotel for the accommodation of guests; that by the redelivery of said chattels as aforesaid, said Hopkins was enabled to retain possession of said hotel and appurtenances, and thereby prevented plaintiff from using or in any manner disposing of said premises and chattels, and from enjoying the rents and profits thereof; that said hotel can be operated profitably only during the time known as the summer months of May, June, July, August and September; that during the said months in the year A. D. 1877, said Hopkins wrongfully detained said chattels and premises from the plaintiff, and realized as profits from the said business the sum of four thousand dollars; that during a term of said district court begun and held at Colorado Springs, in the month of October, A. D. 1878, the same being a regular term of said court, the said action of replevin was tried upon the issues therein joined; that on such trial the plaintiff obtained a verdict upon which a judgment was entered to tbe effect that plaintiff was at the time of the issuance of said writ of replevin entitled to the possession of said chattels; that plaintiff upon said trial also recovered damages for the detention of said chattels after demand therefor and before the issuance of said writ to the amount of one dollar and for costs of suit, amounting to the sum of fifty dollars and eighty cents,
    That about the eighth day of September, A. D. 1877, and after the running of said hotel for that year had ceased to be profitable, the said Hopkins voluntarily delivered said hotel and part of said chattels to plaintiff, but failed to deliver the whole thereof.
    First cause of action: That said Hopkins has not paid said judgment for costs so recovered agaiust him, as aforesaid, nor any part thereof.
    Second cause of action: That said Hopkins has not delivered to it the whole of said chattels, but failed to deliver a portion of said chattels, amounting in value to the sum of five hundred dollars.
    Third cause of action: That it has incurred expenses in and about the recovery of said chattels and in and about obtaining said judgment amounting to the sum of three hundred dollars.
    Fourth cause of action: That by reason of the unlawful detention of said chattels by said Hopkins after the giving of said bond, as aforesaid, plaintiff has sustained damages in the sum of four thousand dollars.
    That no part of said sums so due has been paid.
    Plaintiff demands judgment against defendants for the sum of five thousand dollars, and for interest and costs.”
    Mr. William Hareiso¡st, for plaintiff in error.
    Mr. J. L. Williams, for defendant in error.
   Beck, J.

This was an action upon a replevin bond executed with sureties by the defendant in the replevin proceeding, líobert L. Hopkins, under the act of 1876. Sess. Laws 1876, p. 116.

The complaint sets out four separate causes of action, alleging as many breaches of the conditions of the bond. A demurrer was sustained to the second, third and fourth causes of action. The plaintiff in error abided by its complaint, and the defendants failing to answer to the first cause of action, in compliance with a rule of court, judgment nihil clicit was given thereon.

The errors assigned question the correctness of the rulings in sustaining the demurrer.

A preliminary question is raised by the defendants in error, whether the plaintiff in error has any standing in this court, no exception having been reserved in the court below to the final judgment.

, Several'decisions of this court are cited to show that in such case the judgment is not the subject of review here. The cases, however, only go to the extent of holding that where no exception is saved to the judgment, in a cause tried to the court without a jury, such judgment cannot be reviewed upon the evidence. These decisions were based upon a construction of section 24, chapter 70, R. S., the former practice act. The same provisions were re-enacted by the legislature, February 24,1879, and are in force. Session Laws 1879, page 225.

In Patton v. Coen & Ten Broecke C. M. Company, 3 Col. 265, this court, in construing the statute referred to, held that while it precluded the review of a judgment upon the testimony where an exception to the judgment had not been reserved at the trial, it did not operate to prevent the consideration of errors assigned, based upon exceptions duly reserved during the progress of the trial; and that all assignments of error based upon exceptions properly taken at the trial may be considered by the Supreme Court in such case. ¥e are not, therefore, precluded from considering the errors here assigned, and will proceed to review the rulings of the court below upon the demurrer to the complaint. ■

The second cause of action was for failure to return a portion of the property. The demurrer was probably sustained to this cause of action, because it did not appear from the complaint that an order was entered for a return of the property. We think such order was necessary before there could be a breach of this condition of the bond. The condition was: And deliver said property to the Colorado Springs Company in case return thereof shall be awarded.” The act of 1876 was amendatory of or supplemental to the general law on the subject of replevin as it existed in Chap. 74, R. S.; the failure of the amendatory act to prescribe the form of judgment did not operate to prevent the district court from entering a proper judgment to effectuate the intent and purposes of the act. That it contemplated an order for the return of the property where the plaintiff was successful in his suit, is apparent from an inspection of the first section, which prescribes the conditions of the bond. The judgment, as set out in the complaint, is defective in this particular. The property, being in the possession of the defendant, Hopkins, at the time of trial of the replevin suit, if the right of possession was then in the plaintiff in error, the judgment should have provided for its return. There can be no breach of the condition of the bond in such case until a return is awarded, for this is the letter of the condition. The order necessarily precedes the breach of the condition. The condition was to deliver the property “ in case return thereof shall be awarded.” The breach alleged is simply a failure to deliver. The breach assigned not being as broad as the condition the demurrer was properly sustained. Hunter v. Sherman, 2 Scam. 539; Peck et al. v. Wilson, 22 Ill. 205.

The third and fourth causes of action will be considered together. Both are for the recovery of damages, and must be considered as based upon a breach of that condition of the bond which provides for the payment of all damages that may accrue to the plaintiff by reason of the unlawful detention of the property. It appears from the allegations of the complaint in the present case that on trial of the replevin suit, plaintiff in error was adjudged to have been entitled to the possession of the property mentioned in the writ at the time of its issuance, and that it recovered damages for the detention of said property up to that date.

It was competent for the court in that action to have inquired into the right of possession of the property down to the time of judgment, and to have given damages for its detention to the same date, if the plaintiff was entitled thereto. Wells on Replevin, Sec. 496.

The complaint in this case does not contain sufficient of the proceedings in the former action to explain why judgment was entered in the form mentioned, and why damages were not allowed plaintiff in error for the detention up to date of judgment. Enough appears, however, to show that the subject of damages for detention of the property was an issue in that proceeding. It follows that to the extent of the recovery which might have been obtained in that suit, if no error intervened, the matter is res adjudieata. The same matters litigated there cannot be re-examined in a suit upon the bond. Warren v. Mathews, 18 Ill. 83.

It is not sought in this proceeding to recover the same damages for which judgment was entered in the original suit, but damages for detention subsequently accruing. But in the absence of an order for the return of the property to the plaintiff in error, we are not able to say that any such damages accrued. Certainly if the Colorado Springs Company was not entitled to have the property returned, it is not entitled to damages for its detention.

The conclusion is, that plaintiff in error has not stated such a case in either its second, third or fourth cause of action as entitles it to recover, and that as to all of them the demurrer was properly sustained. If such right in fact existed in favor of plaintiff in error, it should have availed itself of the opportunity granted by the court below to so amend its complaint as to mate the right apparent. Declining to amend, it is concluded by the former proceedings.

Judgment affirmed.  