
    Jayne’s ex’r’x v. Platt.
    
      Attachment — Undertaking under section 5545 — Nature of — Action upon such undertaking — When Sureties thereon concluded by judgment in favor of plaintiff in attachment — Practice.
    1. The undertaking authorized by section 5545, Eevised Statutes, to be given by a defendant in attachment, is intended to take the place of the attachment proceeding, and the property seized by virtue of the writ. It is the intent of the statute that the sureties in such undertaking shall be bound to the same extent (not in excess of the amount of the undertaking), as the property of the debtor, or the garnishees, would have been bound, had no undertaking been given, and the undertaking must be construed with reference to such intent.
    2. In an action upon such undertaking for the recovery of the amount of the judgment in favor of plaintiff and against the defendant in attachment, the sureties are concluded by tire judgment, and will not be heard, in the absence of fraud, collusion, or manifest mistake, to question its ' correctness, or inquire into the action of the court either upon a preliminary motion, or in rendering the final judgment.
    3. In an action commenced by P. against D., in the court of common pleas, the plaintiff asked a judgment for $5,500, upon a claim for money had and received by the defendant to and for the use of the plaintiff. A proper affidavit being filed, stating the same claim, an order of attachment was issued, which was superseded by the defendant giving an undertaking under section 5545 Eevised Statutes, with J. as his surety. Afterward, by leave of court, the plaintiff filed an amended petition, asking to recover a judgment for the same amount named in the original petition by reason of the collection by defendant, after dissolution of a partnership theretofore existing between the parties, of debts due the firm, which by agreement, he was obligated to apply in discharge of partnership debts,'but which he neglected to so apply, whereby the plaintiff was compelled to pay snch debts, and for compensation for time spent in collecting debts and settling claims against tlie firm, and asking that defendant be compelled to account, and be ordered to pay to plaintiff any balance in his hands, and for other equitable relief. Answer was filed, and, on trial, judgment was rendered for plaintiff. The judgment being unpaid, P. commenced an action against J., the surety, on the undertaking to recover the amount of the judgment.
    
      Held: (a) In such action on the undertaking, it will be presumed that the court, in passing upon the application for leave to file the amended petition, ascertained and found, that the claim declared upon in such amended petition, though stated in different form, was based upon the same facts and transactions as the claim stated in the original petition, (b) An answer by J., which alleges, in substance, the foregoing facts, and that when requested to sign such undertaking, the defendant made inquiry into the existence of the indebtedness set out in the original petition, and, upon ascertaining that none such existed, consented to execute said undertaking, and asks to be discharged from liability on the ground that the action in which the judgment for P. was rendered, was not the action in which the undertaking was given, does not state a defense.
    (Decided April 29, 1890.)
    Ekrob. to the Circuit Court of Cuyahoga county.
    Action below was by the defendant in error against Harris Jaynes and Andrew Jaynes to recover upon an undertaking in attachment. It was averred in the petition' that on the 25th of July, 1868, the plaintiff commenced in the Court of Common Pleas of Cuyahoga county, an action against Barney A. DeWolf, and caused an order of attachment to be issued, directed and delivered to the sheriff of said county, and that thereupon DeWolf caused an undertaking to be executed to the plaintiff by the defendants, as his sureties, in the sum of eleven thousand dollars, which was duly approved. The undertaking was to the effect that the defendant should perform the judgment of the court in said action; and thereupon the attachment was discharged. Afterward, at the May term, 1880, the plaintiff recovered a judgment against DeWolf for $5,689.85, and costs $73.93. The judgment is in full force, and wholly unsatisfied. Judgment was asked for $5,763,28, with interest from May 3,1880.
    The. undertaking was as follows:
    
      “ Andrew Platt, plaintiff, v. Barney A. DeWolf, defendant. 1 V ) In the Court of Common Pleas, Cuyahoga county, Ohio.
    We bind ourselves to the said plaintiff, Andrew Platt, in the sum of $11,000, that the said defendant, Barney A. DeWolf, shall perform the judgment of the court in this action.
    Cleveland, July 25th, 1868.
    Harris Jaynes,
    Andrew Jaynes.”
    Defendant, Harris Jaynes filed a separate answer, in which, among other things, it was averred that the action so com-' menced by Platt against DeWolf, and in which the attachment was issued and the undertaking executed, was one at law upon a cause of action stated in the petition to be for money had and received by said DeWolf to and for the use of the plaintiff, amounting to $5,500, for which sum, with interest from July 24, 1868, plaintiff prayed judgment, and no other or further claim or ground of recovery was alleged in said petition. No judgment was rendered upon said cause of action, but some time after said undertaking was executed, plaintiff filed an amendéd petition by which he wholly abandoned the action originally stated, and instead thereof stated one in equity to obtain an accounting between co-partners, and an adjudication of partnership liabilities growing out of a partnership business formerly conducted by plaintiff and defendant and one Porter, and afterward by plaintiff and defendant. Under the issues joined by the amended petition, and answer, the cause was referred to a master to take and state an account between the parties, who reported that DeWolf had received and collected an amount in excess of the sum collected by Platt, which, together with the amount due said Platt for services rendered, amounted to upwards of $11,000, one half - of which Platt was entitled to; whereupon the court rendered judgment for Platt against DeWolf for $5,689.35, which was the only judgment rendered in the ease. Defendants, when requested to enter into the undertaking, instituted careful inquiry into the existence of the indebtedness set out in the original petition, and upon ascertaining that none such existed, consented to execute such undertaking; that the amended petition was filed without his knowledge or consent; was a petition seeking equitable relief, and contained'the statement of a cause of action wholly foreign to that stated in the original petition.
    A copy of the original and ramended petitions was made part of the answer. In the amended petition it was stated, that Porter, Platt and DeWolf were partners prior to September, 1866, when Porter .retired, the other two continuing the business until May 9, 1868, under the same articles of' co-partnership, which were set out. It was therein provided that the parties were to contribute to the capital equally, but if they did not, those who furnished more than their share, were to receive interest on the excess: The amended petition further stated that the firm of Platt & DeWolf was dissolved May 9, 1868; that Platt had contributed substantially the whole capital; that there was due him at dissolution, $6,431.56; the firm debts, aside from this, were $17,248.54; that $15,350 of this, was for money borrowed from a bank which was secured by Platt by a deposit of bonds; that the profits had been large, of which DeWolf had drawn out more than his share; that by agreement at time of dissolution, both parties had bound themselves to apply all dues and assets collected to the payment of debts, and to no other use, and that the excess of time occupied by one more than the other in collecting and settling debts should be paid for; that DeWolf had received after the 9th of May, 1868, a large sum of money, derived from the assets of the firm, but, instead of paying the debts had used a large part thereof in his own business, in violation of said agreement, and that plaintiff had been obliged to relieve his securities by paying all that part of the indebtedness not paid by a receiver, appointed in another action between the parties, and had spent much more time in settling and collecting, than the defendant for which he was entitled to compensation. ' He claimed due from defendant $5,500, with interest from July 29, 1868, and also prayed that defendant might be compelled to come to an accounting, and be ordered to pay plaintiff any balance found in his hands belonging to plaintiff, and for further relief.
    The plaintiff demurred to the answer of Harris Jaynes on the ground that it did not state facts sufficient to constitute a defense. On hearing in the common pleas, the demurrer was overruled, and, reply being filed, the case was tried and judgment rendered for defendant. In the circuit court the judgment of the common pleas was reversed for error in overruling the demurrer and rendering judgment. To reverse the judgment of the circuit court this proceeding in error is brought.
    
      Boynton, Hale Horr, for plaintiff in error.
    1. We claim that the change, or substitution in the action, discharged the surety in the undertaking, because it radically changed his liability without his consent. Ide v. Churchill, 14 Ohio St. 371; Smith v. Huseman, 30 Ohio St. 662; Hall v. Williamson, 9 Ohio St. 23; Meyers v. Parker, 6 Ohio St. 501; Sites v. Haverstick, 23 Ohio St. 623; Butler v. Kneeland, Id. 196; Life Ins. Co. v. Sutphin, 35 Ohio St. 360.
    The statute, see. 5114, old code, 137, does not authorize an independent cause of action to be substituted for the one sought to be amended. Spice v. Steinruck, 14 Ohio St. 213; Reeder v. Sayer, 70 N. Y. 181; Nash on Pleading, 313-314 et seq.; Bates on Pleading, 165, Commissioners v. Andrews, 18 Ohio St. 49; Pomeroy on Remedies, sec. 566; Board of Supervisors v. Becker, 34 Wis. 378; Rutledge v. Vannister, 8 Bush. 354; McGrath v. Balser, 6 B. Mon. 141. The two .causes of action were in “irrepressible conflict.” Niel v. Greenleaf, 26 Ohio St. 570; Dias v. Bonnell's Exr., 24 Wend. 9; Chitty on Contracts, 556; Bartlett v. Diamond, 14 M. & W. 49; Pardoe v. Price, 16 M. & W. 451; Arnold v. Angell, 62 N. Y. 508; Thomas v. Thomas, 5 Exch. 28; Conilli- and v. Eaton, 139 Mass. 105; Ryder v. Wilcox, 103 Mass. 30; Armitage v. Winterbottom, 1 Scott N. R. 23; Paine v. Thatcher, 25 Wend. 450.
    2. The judgment against DeWolf, the defendant in the attachment action, is not conclusive of the sureties’ liability. State v. Jennings, 14 Ohio St. 73; Westerhaven v. Clive, 5 Ohio 136; State v. Colerick, 3 Ohio 487; Secrist v. Barber, 17 Ohio St. 431; Hall v. Williamson, 9 Ohio St. 23; Ingersoll v. Parker, 6 Ohio St. 501; Smith v. Hinsman, 30 Ohio St. 662; Smead v. Chrisfield, 1 Handy 573; Andre v. Fitzhugh et al., 18 Mich. 93; Willis v. Crocker, 1 Pick. 204; Brigham v. Este, 2 Pick. 425; Langly v. Adams, 40 Me. 125; Clough v. Monroe, 34 N. H. 381; Young v. Broadbent, 23 Ia. 539; Robeson v. Thompson, 9 N. J. L. 97; Moulton v. Chapin, 28 Me. 505; Warren v. Lord, 131 Mass. 560; Tucker v. White, 5 Allen 322; Richards v. Storrer, 114 Mass. 101; Quellen v. Arnold, 12 Nev. 234; Jaycox v. Chapman, 10 Benedict 517; Mann v. Brewer, 7 Allen 202; Kellogg v. Kimball, 142 Mass. 128: Wood v. Denny, 7 Gray 540; Haven v. Snow, 14 Pick. 33; Wight v. Hale, 2 Cush. 493; Haynes v. Morgan, 3 Mass. 210; 1 Tidd’s Practice, 242; Wilks v. Adcock, 8 T. R. 27; Wheelright v. Jutting, 7 Taunt. 304; Thompson v. Macirone, 5 D. & R. 619; Furness v. Need, 63 Md. 1; Lumpkin v. Collier, 69 Mo. 170; Fullerton v. Campbell, 25 Pa. St. 346; Wapples on Attachment, 409; Drake on Attachment, sec. 285; Fairchild v. Baldwin, 12 Pick. 388; Ayer v. Smith, 3 Cranch 437; Ward v. Washington, 4 Cranch 232; Clark v. Foxcroft, 7 Green, 1, 296; Christal v. Kelly, 88 N. Y. 285; Leonard v. Speidel, 104 Mass. 356; Ruder v. Sayer, 70 N. Y. 181.
    3. But the surety in the undertaking had the right to treat the law affecting its validity by any amendment to the cause' of action, as settled in this state by the decision in Spice v. Steinruck, 14 Ohio St. 214. Alcott v. Supervisors, 16 Wall. 690; Sweeny v. Easter, 1 Wall. 175; Havemeyer v. Iowa Co., 3 Wall. 294; Douglas v. County of Pike, 101 U. S. 677; Harris v. Jex, 55 N. Y. 421; Shelby v. Guy, 11 Wheat. 367; Louisiana v. Pilsbury, 105 U. S. 294; Anderson v. Santa Anna, 116 U. S. 356; Taylor v. Ypsilanti, 105 U. S. 60; County of Ralls v. Douglass, Id. 728; City v. Lamson, 9 Wall. 477; Boyd v. Alabama, 94 U. S. 645; Thompson v. Lee 
      
      County, 3 Wall. 327; Brown v. Mayor, 63 N. Y. 239; Jessup v. Carnegee, 80 N. Y. 441; Cooley's Const. Lim., 474, 477; Dillon’s Mun. Corp., 46; Paine v. Thatcher, 25 Wend. 450; Montgomery v. Henry, 10 Mich. 20.
    
      Samuel H. Williamson, for defendant in error.
    1. The amendment to the petition was proper and did not change the cause of action. Goble v. Howard, 12 Ohio St. 165; Rainsford v. Rainsford, 57 Barb. 58; Coffee v. Brian, 4 Bing. 54; Brierly v. Cripps, 7 Car. & Payne 74; Trustees v. Odlin, 8 Ohio St. 293; Pease v. Barber, 3 Cain’s Reports 266; Assurance Co. v. Towle, 65 Wis. 247; sec. 5096, Revised Statutes.
    2. If the cause of action was somewhat changed, the amendment might be allowed, and, if allowed, the signers of the undertaking are liable for the amount of the judgment. Sec. 5114, Revised Statutes; Brown v. Leigh, 49 N. Y. 78; Abbott’s Practice Rep., 193; North v. La Flesh, 73 Wis.—; Alber v. Froelich, 39 Ohio St. 245.
    3. Whether the amendment was propérly allowed or not, the judgment of the court against the defendant is conclusive in an action on the undertaking to release the attachment. Myers v. Smith, 29 Ohio St. 120; Holt v. Whittier, 31 Ohio St. 475; Bentley v. Dorcas, 11 Ohio St. 398; Kellogg v. Kimball, 142 Mass. 128; Imbusch v. Farwell, 1 Black. (U. S.) 566; Churches v. Barker, 18 N. Y. 463; United States v. Mosley, 7 Sawyer 265; Christal v. Kelly, 88 N. Y. 285; Slosson v. Ferguson, 31 Minn. 448; Sutro v. Bigelow, 31 Wis. 527; Harra v. Int. Pet. Co., 23 Ohio St. 622. Indeed it may well be considered an established principle, that whenever a surety has contracted with reference to the conduct of one of the parties in some suit or proceeding in court, he is, in the absence of fraud and collusion, concluded by the judgment.
    4. The amended answer of the defendant below, did not State a defense, because it showed that he had not been injuriously affected by the amendment of the petition.
   Spear, J.

The question is, did the amended answer state a defense to the plaintiff’s action ?

Plaintiff in error seeks a reversal of the judgment of the circuit court sustaining the demurrer, on the ground that the judgment rendered against DeWolf and in favor of Platt, was not rendered in the action in which the undertaking sued upon.was given. In other words, that the amended petition was so different from the original as to make a new action, and that, therefore, the liability of the surety was changed without his consent, whereby, upon well settled principles, he was discharged.

To sustain this contention the plaintiff in error must be prepared to show (1), that he can be permitted to inquire into the judgment rendered in favor of Platt and against DeWolf, and (2) that upon such inquiry it will appear that the action in which the judgment was rendered was not the action in which the undertaking was given. Failure to establish either of these propositions is fatal to the claim.

Was the judgment of the court of common pleas in favor of Platt, conclusive in an action on the undertaking to release the attachment?

We think an examination of section 5545, the statute under which the undertaking is permitted, will suggest an answer to the question. That section provides not only for the giving of the undertaking and specifies its character, but defines the effect of it when given. The condition must be “ to the effect that the defendant shall perform the judgment of the court.” On the giving of the undertaking “ the attachment shall be discharged, and restitution made of any property taken under it, or the proceeds thereof.” The undertaking “ shall also discharge the liability of a garnishee in the action, for any property of the defendant in his hands.”

By so giving an undertaking the defendant in attachment is enabled to supersede the proceedings under the writ of attachment, and substitute for the security afforded the plaintiff by a seizure of property, either directly, or in the hands of a garnishee, the personal stipulation and liability of the sureties in the undertaking that “ the defendant shall perform the judgment of the court.” Of course this implies the judgment in the action. In the undertaking here the words “in this action ” were added, but they neither enlarged nor limited the import of the statute.

The undertaking is purely in the interest of defendant. It is given to enable him to regain and retain full use of his property attached, or to be attached, and the undertaking takes the place, for all the purposes of the case, of that property, as well as of the attachment itself. Having thus placed himself in the attitude of a substitute for the attachment and for the property, it would seem to follow that the surety is affected by whatever would have affected the property, and liable to respond upon his undertaking, under the same circumstances, and, within the limit of his undertaking, to the same extent, that the property could have been subjected, or the liability-of the garnishee enforced. If the subsequent action of the court is such as to have the effect of releasing the property attached and discharging the attachment, or of discharging the garnishee from liability, had no undertaking been given, then the surety could, with reason, claim release, but if, whatever may be done, by way of amendment of pleadings, or otherwise, would not have that effect, then it is difficult to see what reasonable claim to release can be urged. The undertaking is to be construed in connection with the existing law, pursuant to which it is made, and with regard to the object sought to be accomplished by the statute authorizing it. This object, as we have seen, is to enable the defendant to substitute for the attachment a security which should be available to the plaintiff upon the recovery of a judgment. Surely the legislature did not intend that the security afforded the plaintiff by his attachment, might be impaired by enabling the defendant to substitute security of less value, or of less efficacy.

In the case under consideration the attachment entitled the plaintiff to charge in the hands of the garnishee named in the affidavit, the moneys and credits belonging to DeWolf, and subject them to the payment of his debt. If no undertaking had been given, the plaintiff could and would, have availed himself of that mode of satisfaction. By giving the undertaking, the sureties enabled the defendant to obtain a valuable benefit in the possession and control of the moneys and credits sought to be reached by the process of garnishment. And, in legal effect, they made the liability of the garnishees their liability, and thus consented to stand in the place of the garnishees, and to become themselves liable, not exceeding the amount named in the undertaking, to the same- extent, and under the same circumstances, as the garnishees would have been, had no undertaking been given. It cannot, with reason, be claimed that the filing of the amended petition could have the effect of discharging the attachment, or releasing the garnishees. The case made in the new pleading, though different in its form of statement from that in the original, was not, necessarily, a case based upon different facts. Whether it was or not, was a matter proper to be inquired into when the application to file the amended petition was being considered, and it will be presumed that the court, in passing upon the application, ascertained and found, that the claim declared upon in such amended petition, though stated in different form, was based upon the same facts and transactions as the claim stated in the original petition. Nor did the form of either exclude the right to an attachment. Each was an action for money. Lord Mansfield denominated the action for money had and received “ a kind of equitable action.” The early authorities held that “ where money is due ex cequo bono, it may be recovered in an action for money had and received.” None doubted that it is for the recovery of money. And, since the decision in Goble v. Howard, 12 Ohio St. 165, no doubt has existed that, in this state, one partner, in an action against his copartner, after dissolution of the firm, to recover what is claimed to be due, may have an order of attachment as in other civil actions for money. The only person who could have interposed a legal objection to the ruling of the court in allowing the amended pleading to be filed was the defendant in the case, and he only by a proceeding in error to reverse. No such proceeding was instituted, and the final judgment stands as conclusive against him. It is, we think, in the absence of allegations of fraud, collusion, or manifest mistake, equally conclusive against the sureties in the undertaking. They are liable for the amount of the judgment irrespective of its legal merits, because such is the nature of their contract. They cannot, any more than could a surety for a plaintiff in attachment, or in replevin, go behind the judgment and allege that, for errors committed, it is contrary to law. Any other construction of the statute would defeat its obvious purpose. Nor can it be said that such result could not have been in contemplation of the parties, for, whatever they may allege otherwise, in signing the undertaking, these sureties must be presumed to have done-so with knowledge of the statute, and of the power of the court to allow amendments to the pleadings. If they acted on a mistaken idea of the meaning of the statute, or of practice in the courts, and were thereby misled to their injury, it is their misfortune.

But if we should apply to this undertaking the strictest rules of construction, it is difficult to see how the contention of plaintiff in error could be maintained. The language is : “perform the judgment of the court in this action.” Admittedly, these words mean the action then pending. An action includes the formal proceedings attendant upon the demand of a right made by one party of another, which is properly said to terminate at judgment. The view of counsel seems to confuse “ cause of action ” with “ action,” and to seek to substitute for the proceeding itself, the right upon which it is based. Beyond all question, the judgment was rendered in the action in which the undertaking was given, unless the filing of the amended petition itself made a new action. No other action was commenced, and none other prosecuted. And a fair interpretation, as well in accordance with the language as with the sense of the obligation, would hold the term “this action” to mean the suit then pending between the parties.

We have not overlooked the many cases in this state and elsewhere, cited by the learned counsel for plaintiff in error in his brief. But we cannot agree that they require a reversal of the judgment. The question turns upon a construction of our statute, and that is not controlled by the decisions of courts of other states. Many of the Ohio cases cited are actions on official bonds. In State v. Colerick, 3 Ohio, 487, where, in a suit upon a sheriff’s bond against the sureties, the record of a judgment against the principal alone had been admitted, this court say: “ Where the sureties have notice of the suit, and may, or do make defense, the judgment against the principal is conclusive against them. Where such notice is not given, the judgment against the principal is prima fade only. It may be impeached for collusion, or for mistake. But, until so impeached, it is sufficient to entitle the plaintiff to recover the amount for which it is rendered.” A somewhat careful examination of Ohio cases fails to discover one where the court has held to the contrary of this. It is true that in the opinion in State v. Jennings, 14 Ohio St. 73, the judge states his opinion, based upon authority to be, that where sureties have no notice of the action against the principal they may “ not merely attack the judgment for fraud or collusion, but open up the inquiry into the merits,” though he intimates that the decisions which establish the rule “ may be subject to just criticism, and questionable as to the principle on which they rest.” The action was one against a constable and his sureties on his bond, and, at the trial, the record of the judgment previously rendered against the constable alone was rejected. The facts hardly called for a holding to the extent indicated in the opinion, and in the syllabus the case’of State v. Colerick, supra, is cited and followed. But whatever the law may now be in such cases, a distinction, we think, is to be taken between them and the case we are considering. In general, the obligation in official bonds is that the surety will be responsible in case the officer fails to faithfully discharge the duties of the office. The question in issue, in an action on the bond against the sureties, is, has there been dereliction of official duty within the meaning of the bond, and has the party complaining been damnified ? In this class of cases the question is different. It is: Did the plaintiff recover judgment, and for what amount, and did the defendant satisfy it? Proof that a judgment was rendered for the plaintiff in attachment which the defendant has not satisfied, shows a breach of the bond. And of such judgment,'it would seem, that the record itself is not only the best, but the only evidence, and, until impeached for fraud, collusion, or manifest mistake, ought to be held conclusive.

Tlie precise question here presented has not been before this court heretofore. But some of the cases referred to by counsel for defendant in error in his brief, we think, bear upon the case before us. Bently et al. v. Dorcas et al. 11 Ohio St. 898, was an action against sureties upon a bond given for appeal from the judgment of the court of common pleas to the district court. The answer alleged, among other defenses pleaded, that the decree in the district court on appeal was rendered upon a different and distinct liability from that sustained by the common pleas, and upon a ground not made in the pleadings, and such a decree, it was urged in this court, could not have been in contemplation of the parties, and should not be regarded as within the terms of their contract. But the court, speaking by the opinion, held that they were not at liberty, in that proceeding, to say that the district court erred, but were bound .to assume that the decree of that court was properly made; that if the decree was prejudicial to any of the parties, their remedy was by a direct proceeding to reverse or modify, and as no such step had been taken, the court must regard the decree as valid and correct, and must decide only on its legal effect on the liability of the parties who had executed the bond.

In Braiden v. Mercer, 44 Ohio St. 339, the question presented was whether or not, in an action upon a guardian’s bond for recovery of amount found due the wards upon a final settlement of the guardian’s account in the probate court, the sureties were concluded by the judgment. The court held that they were, and that, in the absence of fraud and collusion, they could not be heard to question its correctness, or to demand a rehearing of the accounts. In the opinion, the learned Chief Justice uses language which seenis to have application here: “ By their bond the sureties contract with reference to the action of a court and that their principal will obey its order and conform to such action. Can they say they are strangers to such proceeding ? Upon their principal’s failure to obey the order of the court there is clearly a breach of the bond. The relation they assume to such court and its action so far makes them privy to the proceedings affecting their principal as to deny to them the right, when called to answer for the breach of the bond, to call in question the grounds upon which the court based its action, and to have the same case re-tried.....Indeed it may well be considered an established principle, that whenever a surety has contracted with reference to the conduct of the parties in some suit or proceeding in court, he is, in the absence of fraud and collusion, concluded by the judgment.” And, in support, cites a long list of cases.

The Supreme Court of Wisconsin, in Sutro v. Bigelow, 31 Wis. 527, in a well considered opinion, construes the statute of that state, which is similar, in substance, to section 5545, giving to it the same construction hereinbefore placed upon that section. See, also, Hanna & Finley v. Int. Pet. Co., 23 Ohio St. 622; Methodist Church v. Booker, 18 N. Y. 463; U. S. v. Mosely, 7 Sawyer (U. S. C. C.), 265; and Inbusch v. Farwell, 1 Black. 566. Also, Lathrop v. Southworth, 5 Mich. 448; Towle v. Towle, 46 N. H. 434; Heard v. Lodge, 20 Pick. 58, and Shepard v. Pebbles, 38 Wis. 373.

In this case the allowance by the trial court of an amendment to the petition, if wrong, was but an error, and was valid until reversed. No claim of fraud, collusion, or mistake in the proceedings is made by plaintiff in error, and, we think he was bound by the judgment rendered against DeWolf, and cannot be heard here to call it in question. We agree with the circuit court that the answer did not state a defense; and, finding no error in the judgment of that court, the same is

Affirmed.  