Fruits v. Elmore

• Decision Date: 21 September 1893
• Docket Number: 901
• Parties: FRUITS ET AL. v. ELMORE
• Court: Indiana Appellate Court

34 N.E. 829

8 Ind.App. 278

FRUITS ET AL. v. ELMORE

No. 901

Court of Appeals of Indiana

September 21, 1893

Petition for rehearing overruled November 28, 1893.

From the Montgomery Circuit Court.

Judgment reversed at the costs of appellee, with instructions to sustain the motion for a new trial as to all the appellants.

G. D Hurley and M. E. Clodfelter, for appellants.

G. W Paul and M. W. Bruner, for appellee.

OPINION

LOTZ, J.

The appellee was the plaintiff and the appellants the defendants in the court below. The action was to recover the possession of a certain horse. There was a trial by jury, and the appellee had judgment in her favor against all the appellants. The appellants have severally assigned errors in this court. The first error discussed by counsel is that the court erred in sustaining a demurrer to the second paragraph of the separate answer of Noah Fruits. In this paragraph, said appellant pleaded, that he was the duly qualified and acting constable of Ripley township, in Montgomery county, and that a writ of execution was duly issued and delivered to him by John L. Hankins, a justice of the peace of said township, on a judgment duly made and given in favor of one Jacob Elmore, and against one James Elmore; that as such constable he levied said writ upon the property described in the complaint as the property of said James Elmore, and that the same was the property of said James Elmore. There was no error in sustaining a demurrer to this answer. It is only equivalent to an answer of property in a third person. It is well settled that where the real defense in replevin is property in a third person, such defense may be given under the general denial. Branch v. Wiseman, 51 Ind. 1; Lane v. Sparks, 75 Ind. 278.

The next assignment of error discussed by counsel is the overruling of the motion for a new trial. On the trial the appellants, after sufficiently identifying the same, offered in evidence a judgment rendered by the appellant, John L. Hankins, as a justice of peace of Ripley township, in the case of Jacob Elmore against James Elmore, and a writ of execution issued thereon by the appellant, John L. Hankins, as such justice of the peace, which was levied upon the property in controversy by the appellant, Noah Fruits, as constable of said township. This evidence was excluded over the objection of the appellants. Replevin is a mere possessory action. Title to the property is usually but an incident in determining the right to possession. It may, or may not, be a controlling circumstance. One person may have the title and another have the right to the possession. Usually title is a strong circumstance tending to show the right of possession. In the case in hearing, it was proper, under the issues for the appellants, to show that the horse was the property of James Elmore, and that the possession under the writ and judgment was lawful and right. The general issue admits any evidence relevant to the right of possession, asserted by the plaintiff, including evidence of a right of possession in the defendant, or even in a stranger. Smith v. Harris, 76 Ind. 104. Appellee, however, contends that the judgment on its face is a nullity, and that it conferred no rights upon appellant Hankins, to issue an execution, and that the writ affords no protection to the other appellants in making the levy. The judgment offered in evidence shows that it was an action on account for work and labor done, in which a judgment in the sum of $ 3 was demanded. There was a trial by jury, and a verdict as follows: "We, the jury, find for the plaintiff." Upon this verdict the justice rendered judgment in favor of the plaintiff in the sum of $ 3 and costs of suit, costs taxed at $ 14.75. The writ was issued for $ 3 with interest, and for $ 14.75 costs. This writ was levied upon the property in controversy.

It has often been decided that where there is a mere finding for the plaintiff, without any assessment of damages, no judgment can properly follow. Cincinnati, etc., R R. Co. v. Washburn, 25 Ind. 259; Trout v. West, 29 Ind. 51; Mitchell v. Geisendorff, 44 Ind. 358; Nicholson v. Caress, 76 Ind. 24; Bunnell v. Bunnell, 93 Ind. 595.

If a judgment is a nullity, the party against whom it is rendered may...