Hartlep v. Cole
| Decision Date | 08 October 1889 |
| Docket Number | 13,091 |
| Parties | Hartlep et al. v. Cole |
| Court | Indiana Supreme Court |
From the Warren Circuit Court.
Judgment affirmed, with costs.
J McCabe and E. F. McCabe, for appellants.
J. W Cole, for appellee.
The appellee was the plaintiff below. The complaint was in two paragraphs. The first counted upon a written undertaking executed by the appellants to obtain the possession of personal property in an action of replevin. The second counted upon an appeal bond executed by the appellants for the purpose of perfecting an appeal taken in term by the appellant Hartlep from a judgment rendered against him by the Warren Circuit Court.
The appellants answered in two paragraphs, which were demurred to. The demurrers were sustained and exceptions taken.
The appellants then filed two additional paragraphs of answer the first of which was the general denial. To the second paragraph the appellee filed a reply in general denial. There was a trial by the court, a general finding for the appellee, and, over a motion for a new trial, judgment was given for the appellee. To the overruling of their motion for a new trial the appellants excepted.
The several errors assigned are, in substance, as follows: 1. The court erred in sustaining the demurrer to the first paragraph of answer. 2. The court erred in sustaining the demurrer to the second paragraph of answer. 3. The court erred in sustaining the demurrer to the answer. 4. The court erred in overruling the motion for a new trial. 5. The court erred in sustaining the appellee's demurrer to the appellants' answer to the complaint. 6. The complaint does not state facts sufficient to constitute a cause of action. 7. The court erred in refusing to make a special finding.
The first paragraph of the complaint alleged that, on the 9th day of July, 1883, the appellant Hartlep filed in the clerk's office of Warren county his complaint and affidavit by which he sought to recover from the appellee certain personal property therein described, and that the clerk of said court on that day issued a writ directing the sheriff of Warren county to take said property from the appellee and deliver it to the appellant Hartlep upon his giving the written undertaking required by law, and on the same day the said sheriff executed said writ by taking from the appellee the said property and delivering it to the appellant Hartlep, and upon the delivery of said property the sheriff accepted the said written undertaking of the appellants, which they then and there executed and delivered to him; that by the terms of the said undertaking the appellants undertook and bound themselves, among other things, that the appellant Hartlep should return to the appellee the said property if return should be awarded, and to pay all such sums as the appellee should recover in said action; and the appellee avers that such proceedings were had in said action that at the January term, 1884, of said court, by the consideration and judgment thereof, it was adjudged that the appellant Hartlep return said property to the appellee, and that he recover of the said appellant his costs and charges laid out and expended, amounting to $ 100, which are still due and unpaid; that the said judgment is still in full force, and that the appellants have failed and refused to return said property, or pay said costs upon request so to do.
The second paragraph of the complaint alleged that the appellee recovered a judgment against the appellant Hartlep for the recovery of one bay mare of the value of $ 125, then in said appellant's possession, and a judgment for his costs in said action; that the appellant Hartlep was granted an appeal to the Supreme Court from said judgment upon condition of his filing a bond in the sum of $ 200, with his co-appellant as surety, within thirty days from the date of said judgment, which bond was duly filed on the 31st day of January, 1884, with the clerk of the Warren Circuit Court, and which bond was duly approved by the clerk; that, by the terms of said bond, the appellants bound themselves in the penal sum of $ 200 that the appellant Hartlep would duly prosecute his said appeal to effect, and abide by and pay the judgment and costs that might be adjudged against him; and that, on the 25th day of April, 1885, this court affirmed the said judgment in all things against said appellant, which judgment is now in full force and effect; that the appellants have failed and refused to return said property, or pay therefor, and have failed to perform and satisfy said judgment. Copies of the obligations sued on are filed with the complaint as required by the statute.
We can see no valid objection to either paragraph of the complaint.
It is too late for the appellants, after having executed the replevin bond and obtained possession of the property, after the court has rendered judgment awarding the property to the appellee, and after a failure to comply with the order of the court or pay the judgment, to set up as a defence to the action that the statutory provisions in regard to the execution of the bond were not technically complied with; the law of estoppel will not allow such an unconscionable defence. But the bond having been delivered to the sheriff, and he, acting upon such delivery, having turned the property over to the appellant Hartlep, this constituted an acceptance and approval of the bond. The sheriff did endorse his approval on the bond, as the copy shows, but this was not necessary.
The presumption is, that an officer does his duty; it was the privilege of the...
To continue reading
Request your trial