Busching v. Sunman

• Decision Date: 06 April 1898
• Citation: 49 N.E. 1091,19 Ind.App. 683
• Parties: BUSCHING, Sheriff, v. SUNMAN.
• Court: Indiana Appellate Court

19 Ind.App. 683

49 N.E. 1091

BUSCHING, Sheriff,

v.SUNMAN.

Appellate Court of Indiana.

April 6, 1898.

Appeal from circuit court, Decatur county; J. D. Miller, Judge.

Action by Hannah J. Sunman against Henry Busching, sheriff of Ripley county.From a judgment for plaintiff, and orders denying motions for a new trial and to vacate and correct the judgment, defendant appeals.Affirmed.

James H. Connelley and Ewing, Wallingford & Ewing, for appellant.John B. Rebuck and Ewing & Wilson, for appellee.

WILEY, J.

Appellant was sheriff of Ripley county, and, as such, levied upon certain personal property, by virtue of an execution against Thomas W. Sunman, husband of appellee, as the property of said Sunman.Upon making such levy, appellant took constructive possession of such property, but did not remove it from the premises, or take actual possession thereof; whereupon appellee brought an action of replevin against appellant in the Ripley circuit court, to recover possession of the property so levied upon.The venue was changed to the court below, where a trial was had by a jury, resulting in a verdict and judgment for her.The verdict returned by the jury was as follows: “We, the jury, find for the plaintiff that she is the owner of and entitled to the possession of the property described in the complaint, and that she recover of and from the defendant the sum of one cent for the unlawfuldetention thereof.”This verdict was returned, and the judgment pronounced thereon, on the last day of the November term, 1896, of said court.On the first day of the succeeding term, appellant filed his motion for a new trial, and assigned therein the following reasons: (1) That the verdict was not sustained by sufficient evidence; (2) that the verdict was contrary to law; (3-7) that the court erred in refusing to give certain instructions tendered by appellant.The motion for a new trial was overruled, the proper exception reserved, and such ruling is assigned as error.Appellant has made no attempt to bring into the record either the evidence or the instructions, and hence his assignment of error calling in question the action of the court in overruling his motion for a new trial does not present any question for review.

Appellant contends that, because the verdict is not in strict conformity to the provisions of the statute, in that it fails to find the value of the property in controversy, the second reason assigned in his motion for a new trial, that the verdict is contrary to law, is properly presented by the first specification of the assignments of error.We cannot agree with this contention.Every reasonable presumption must be indulged in favor of the action of the trial court, and, in the absence of the evidence, we cannot say that a verdict is not sustained by sufficient evidence, or that it is contrary to law.While the verdict is not in strict conformity to the statute, yet it is not so uncertain, ambiguous, and defective that it will not support a judgment.From the whole record, it is clearly discernible that appellee, who was plaintiff below, was in the actual possession of the property described in her complaint, and the failure of the jury to assess its value by their verdict is not an omission or error of which appellant can justly complain.The provision of the statute requiring the jury in a replevin case to assess the value of the property in controversy is evidently for the purpose of enabling the court to render a judgment for the return of the property, or, in the event that it is or cannot be returned, to render judgment in favor of the prevailing party for its value so assessed.The property being in the possession of the appellee, appellant was not in any manner injured by the failure of the jury to assess its value.In Van Gundy v. Carrigan, 4 Ind. App. 333, 30 N. E. 933, this exact question was decided.The court said: “The Code provides that, in actions of replevin, the jury must assess the value of the property, as also the damages for the taking and detention, whenever, by their verdict, there will be a judgment for the recovery or return of the...