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A fourth amended complaint was dismissed as to Aetna ~
based upon the finding that plaintiff had prejudiced Aetna's
indemnity rights. Accordingly, we reject appellee's argument '
that the trial court's decision should be affirmed on the s
alternative basis that in five complaints appellant failed to
state. a~cause of action against Aetna..
We hold that Aetna's indemnity rights were~not prejudiced
by any meaningful and relevant action of-appellant. In fact, it
is not clear from the pleadings whether those rights have been
prejudiced at all . Further, if the •allegations that Custom Harvesters, the
principal, has~been looted of_all its assets are taken as true,
there~is no showing that Aetna's indemnity rights were worth
anything in the first instance. This is precisely the reason
for requiring a bond in~replevin actions, to ensure that the party
from whom_possession is wrongfully taken will have recourse whether
or not the wrongdoer remains solvent. To refuse to permit appel- -
lant to file an amended complaint under these circumstances was
an abuse of discretion.
II We therefore.. reverse the order dismissing the fourth
` amended complaint with prejudice and remand this cause with
~ directions that appellant be permitted to file a fifth amended
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complaint and for further proceedings consistent with this opinion.
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REVERSED AND REMAr'DED.
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3 f1LE0 C A.
DOWNEY and HURLEY , JJ . , concur . SaERK P 7~gt
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