McFadden v. Ross
| Decision Date | 14 September 1886 |
| Docket Number | 11,031 |
| Citation | 8 N.E. 161,108 Ind. 512 |
| Parties | McFadden et al. v. Ross et al |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Dec. 17, 1886.
From the Shelby Circuit Court.
Judgment is reversed, with costs.
B. F Love, J. B. McFadden, C. A. Ray, F. Knefler and J. S Berryhill, for appellants.
E. K. Adams and L. J. Hackney, for appellees.
Ross and Stumph sued McFadden and Miller on a replevin bond. They charged in their complaint that on the 26th day of March, 1880, they were the owners and in possession of certain personal property of the value of $ 401.90, and that on that day McFadden, as administrator of the estate of Joseph Nichols, deceased, claiming to be entitled to the possession of the property, instituted a suit in replevin against them in the Shelby Circuit Court, for the recovery of the property described.
It is averred in the complaint that the property was seized by the sheriff upon a writ duly issued at the suit of McFadden, and that by means of the undertaking sued on, which was delivered to and approved by the sheriff, the possession of the property was secured by the plaintiff in the replevin suit. The plaintiffs further charge that after obtaining possession of the property by the means above mentioned, McFadden dismissed his action, after which the court found and adjudged that they--plaintiffs--were the owners, and entitled to the possession, of the property, and that it was of the value of $ 401.90, and adjudged further that the property should be returned to them, or, in default thereof, that they should have execution against McFadden for the sum above mentioned.
The breach of the undertaking assigned is, that McFadden failed to prosecute the proceedings in replevin with effect, and also failed to return the property, or any part thereof, according to the judgment of the court.
A question as to the sufficiency of the complaint, argued by counsel, has been obviated by the return to a writ of certiorari, heretofore ordered.
The learned counsel for appellants also concede, that the case was eventually tried on the complaint, answer in denial, and a plea of non est factum, in which the delivery of the bond sued on was denied. It results that the questions made having reference to a reply, and some special answers which subsequently went out of the record, are immaterial.
At the trial the appellants admitted the genuineness of their signatures to the bond, and as the approval of the sheriff was endorsed thereon, as of the date of the commencement of the suit, its execution was sufficiently proved to authorize its admission in evidence to the jury. The objection that the bond was improperly admitted was not, therefore, well made.
During the progress of the trial, the appellants offered evidence tending to prove that the bond was not in fact delivered to the sheriff, but instead was delivered to one Capp, a bailiff of the court. They offered to prove furthermore, that the writ of replevin was also delivered to and served by Capp; that he seized the goods in controversy, and that neither the sheriff, nor any one properly authorized by him, took the property out of the plaintiffs' possession, or accepted the bond. This evidence was properly refused.
The bond has upon it the approval of the sheriff, and the official return of that officer endorsed upon the writ recites, that he seized the property therein described by virtue of the command of the writ, and that having received an undertaking from the plaintiff which he had approved, he had delivered the property to the plaintiff in the replevin suit.
Having, as it is thus made to appear, acquired possession of the property, through a proceeding set on foot by himself, and through instrumentalities which were apparently regular and satisfactory to him at the time, neither the plaintiff in the replevin suit, nor his surety, will now be heard to impeach the return of the sheriff, and the regularity of the proceedings in replevin, or to question the authority of the person who seized the property upon the writ, and from whose hands he accepted it, as in pursuance of the proceedings so instituted.
What was said in the well considered case of Harbaugh v. Albertson, 102 Ind. 69, 1 N.E. 298, and the cases therein cited, renders it unnecessary that we should consider this point further.
That the writ of replevin under which the property was seized was subsequently quashed on the defendants' motion, does not affect the question.
As has already been seen, McFadden prosecuted the replevin suit, in which the undertaking sued on was filed, as administrator of the estate of Joseph Nichols, deceased. He averred in his complaint that, as such administrator, he was entitled to the possession of the property therein described. The pleadings and proceedings in the replevin suit, which are set out in a bill of exceptions containing the evidence, show that Ross and Stumph claimed to have purchased the property at a constable's sale, which was made to satisfy an execution in their favor, issued upon a judgment recovered by them against one George D. Nichols.
At the trial, the appellants offered to prove by the deposition of George D. Nichols, that a certain chattel mortgage, covering the property in controversy, executed by the witness to Joseph Nichols, deceased, prior to the levy and sale on the Ross and Stumph execution, remained unpaid. This mortgage was given while George D. Nichols owned the property, to secure a debt of $ 500 due from the mortgagor to Joseph Nichols. Upon the appellees' objection the evidence was excluded.
The appellants contend that it was competent to prove in mitigation of damages, that the Nichols estate, of which McFadden was administrator, held an unpaid chattel mortgage on the property. That the excluded evidence was admissible can not be seriously questioned, unless the finding and judgment in the replevin suit precluded the appellants from availing themselves of the benefit of the unpaid chattel mortgage.
If the appellees were the absolute owners of the property, its value would have been the measure of their damages. If, however the Nichols estate had a valid subsisting chattel mortgage upon it, the appellants were entitled to prove the fact in mitigation of damages, provided they were not estopped by the former adjudication. Wallace v. Clark, 7 Blackf. 298; Stockwell v. Byrne, 22 Ind. 6; ...
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