¶1*558On Petition eos. a Rehearing.
¶2Appellant in his brief upon his petition for a rehearing insists that the court erred in holding that the filing of an amended complaint, by leave of the court, and an answer thereto, took the original complaint and the answer thereto out of the record.
¶3The amended complaint alone formed the basis of the trial. The answer to the original complaint Was not á sufficient answer to the amended.complaint, and could not be made to apply to it without being rc-filed; but, in this case, instead of re-filing the old answer, a new answer was filed to the amended complaint, upon which the trial was had. There is no error in the holding that the original complaint and answer constituted no proper part of the record, and that appellant could not complain of a demurrer being sustained to said original answer, and we may add that appellant ivas not harmed by the ruling upon the demurrer to his first answer, for the reason that the same matters, in connection with others, were also pleaded in his second answer, upon which there was a trial. Appellant further insists that he was entitled to judgment, under his motion therefor, upon the answers of the jury to the third and sixth interrogatories, which show that he ivas acting as agent for Trentman, and had placed the property in the hands of the liveryman, to be taken to Fort Wayne before the writ of replevin was issued and served; that the action was in form ex contractu, and not ex delicto, and that, appellant being agent, judgment could not be rendered against him, but must be against Trentman, his principal, if against any person; and further, that he had parted with the possession of the property to the liveryman.
¶4Appellant complains that his position stated above, in relation to the form of the action, was not discussed or passed upon in the original opinion herein. That the action of replevin for the unlawful taking or detention of personal property sounds in tort, and not in contract, we supposed was too *559•well understood to need discussion. Rose v. Cash, 58 Ind. 278. True, a party could waive the tort and sue in contract for the value of the property; but that was not done in this case. In torts the relation of principal and agent does not exist; they are all wrong-doers, and may be sued jointly or separately; and the liability of each and all does not cease until payment has been made, or satisfaction rendered, or something equivalent thereto.
¶5Appellant took possession of the property, and placed it in the hands of the liverymen, and directed them to take it to Fort Wayne; appellee demanded it; they refused to surrender to him the possession, and started with it to Fort Wayne-Before they got out of the county .with it the sheriff seized it under the writ of replevin. We think the possession of the liverymen must also be regarded as the possession of appellant. He was actively participating in the detention of the property, by its being done under his direction; and if he was acting under directions from Trentman, and he was not sued, that would not relieve appellant from liability for his tortious acts.
¶6Appellant further insists that as the court sustained the several motions of the liverymen for judgment in their favor upoxx the special findings of the jury, it ought also to have sustained appellant’s motion, for the reason that when judgment was rendered in their favor they ceased to be pax’ties to the action, and the court then had no jurisdiction of appellant, there being no resident defendant in the couxxty. We think, this position can not be maintained. 'The liverymen did not cease to be parties to the actioxx. They obtained a judgment against the appellee for costs, and remained in the action; but this is an objection to the judgment, and not to the ovexTuling of appellant’s motion for judgxnexxt in his favor upoxx the special findings of the jury. No objection was made to the form or substance of the judgment in the court below, nor is any such objection coxxtained in any of the numerous assignments of error in this court.
¶7*560The other objections to the original opinion are fully answered by the opinion. The petition for a rehearing ought to be overruled.
¶8The petition for a rehearing is overruled.