Diggs v. Way

• Decision Date: 30 June 1899
• Docket Number: 2,455
• Citation: 54 N.E. 412,22 Ind.App. 620
• Parties: DIGGS ET AL. v. WAY ET AL
• Court: Indiana Appellate Court

54 N.E. 412

22 Ind.App. 620

DIGGS ET AL. v. WAY ET AL

No. 2,455

Court of Appeals of Indiana

June 30, 1899

22 Ind.App. 617. At 620.

Original Opinion of October 14, 1898, Reported at: 22 Ind.App. 617.

Petition for rehearing overruled.

BLACK J. HENLEY, J., dissents.

OPINION

ON PETITION FOR REHEARING.

BLACK J.

It is urged on behalf of the appellees that the first paragraph of the complaint was sufficient as a complaint to foreclose the chattel mortgage, inasmuch as the copy of the mortgage filed as an exhibit sufficiently showed the residence of the mortgagor; and it is contended that our original opinion violates the familiar rule that the assignment in this court that the complaint does not state facts sufficient to constitute a cause of action attacks the complaint as an entirety, and cannot prevail if any paragraph of the complaint be good. Our attention is directed by counsel to United States Express Co. v Rawson, 106 Ind. 215, 6 N.E. 337, where the rule is strongly expressed. In that case the court was able to affirm the judgment for the plaintiff based upon a special verdict. In what respect the two paragraphs of complaint differed from each other is not indicated, but it must have been true that the court regarded the verdict as within an issue tried, and considered the facts stated in the special verdict as constituting a cause of action within some theory presented by the complaint. In the course of the opinion, in the discussion upon the special verdict, it is said that the case was conducted below upon a theory which is set forth in the opinion, after stating which the court said: "And so the case is treated here." Indeed, every case must proceed upon some definite legal theory, and the theory upon which it has been conducted to judgment, the cause of action upon which the judgment is based, cannot be abandoned on appeal. This rule must be regarded, where applicable, in the discussion of other rules. Upon appeal the parties must be held to the theory upon which they tried the case. Adams v. Davis, 109 Ind. 10, 21, 9 N.E. 162. Where a cause has been tried upon the theory that it is an action in tort, and not in contract, that theory will govern the cause on appeal. Lake Erie, etc., R. Co. v. Acres, 108 Ind. 548, 9 N.E. 453.

In the case before us, the court stated its conclusions of law upon the facts found as follows: "And, as conclusions of law upon the facts found, the court finds that the defendants Daniel E. and Frank Diggs are liable to the plaintiffs for the value of said goods, wares, and merchandise commingled and mixed with other goods and merchandise of like character, and appropriated by them to their own use, covered by the plaintiffs' mortgage, and so much of the value thereof as is sufficient to pay and satisfy the indebtedness to the plaintiffs secured by said mortgage, to wit, $ 525 thereof. Finding for plaintiffs in the sum of $ 525." This was signed by the judge. The record showed the exceptions of the appellants to the conclusions of law, and then proceeded as follows: "The court now finds for the plaintiffs on said complaint, and that there is due from the defendants Daniel E. Diggs and Frank Diggs the sum of $ 525." To this was signed the name of the judge. The judgment was then entered as follows: "It is therefore considered and adjudged by the court that the plaintiffs have and recover of and from the defendants Daniel E. Diggs and Frank Diggs the said sum of five hundred and twenty-five dollars, and likewise their costs and charges in and about this suit by them laid out and expended. " Here was plainly a finding and a judgment in tort, for conversion, with which the appellees, the plaintiffs, were satisfied, and from which the defendants appealed to this court, the matter in dispute here being whether or not a judgment for the plaintiffs for damages for the conversion by the defendants of personal property to their own use should be reversed. In such a case this court has jurisdiction, while it has not jurisdiction of a suit for the foreclosure of a chattel mortgage. In each paragraph of the complaint, in fact, the foreclosure of the mortgage was part of the relief demanded; but such purpose was abandoned in the progress of the case, which upon the trial became simply an action for conversion. The court below and the parties treated the complaint as one for conversion. Its sufficiency as such a complaint is presented on appeal. The special finding lacked a material fact as to which in such a case the burden would be upon the plaintiffs, which was also lacking in the complaint treated on the theory of the special finding and judgment. The special finding did not state facts sufficient to warrant the conclusions of law drawn from them. We could not sustain the conclusions of law; but the sufficiency of the complaint being questioned by assignment of error, and it being insufficient to sustain such a judgment, we deemed it conducive to the purposes of justice to base the reversal of the judgment upon the insufficiency of that pleading. We do not hold that under such assignment of error less than the entire complaint may be attacked, or that the judgment may be reversed because of the insufficiency of one of a number of paragraphs, but we hold both paragraphs insufficient upon the theory upon which they were treated and made to uphold the judgment for conversion from which this appeal was taken.

The petition for a rehearing is overruled.

DISSENT BY: HENLEY

HENLEY J.--The judgment of the lower court in this cause is reversed under an assignment of error that the complaint does not state facts sufficient to constitute a cause of action, the second paragraph of complaint being insufficient. I am convinced that the majority opinion in this cause is manifestly wrong for...