Heeter v. Fleming
| Decision Date | 17 June 1946 |
| Docket Number | 17408. |
| Citation | 67 N.E.2d 317,116 Ind.App. 644 |
| Parties | HEETER v. FLEMING et al. |
| Court | Indiana Appellate Court |
Appeal from Jay Circuit Court; William A. Burns, Special Judge.
Action by William J. Heeter against James R. Fleming and others for conversion of personal property. Judgment for defendants, and plaintiff appeals.
Affirmed.
Frank B. Jaqua, of Portland, and John P Thompson, John H. Edris, and Frank W. Gordon, all of Bluffton, for appellant.
James J. Moran, Albert A. Abromson, Roscoe D. Wheat, and Robert L Smith, all of Portland, for appellees.
This is an action commenced by appellant against appellees for the alleged wrongful conversion of certain personal property. The pleadings upon which the cause was tried are:
Appellant's complaint which averred, in substance, he was the owner of certain described personal property; that appellees wrongfully and unlawfully confiscated and converted said property to their own use and disposed of same to appellant's damage in the sum of $6000.
Appellee Fleming's answer of denial and a second paragraph of answer pleading the six-year statute of limitations. Burns' Ann.St. § 2-601. He filed a third and fourth paragraph of answer which were withdrawn by leave of court before reply without objection by appellant.
Appellee Van Skyock's answer of denial, a second paragraph of answer pleading the six-year statute of limitations and a third paragraph in which he alleged, in substance, that in August, 1939, he became the owner of certain real estate in Jay County; that for more than ten years prior thereto there was some oil well drilling equipment on said real estate (this is the property involved in this action); that he made inquiry as to who owned the property and examined the records in the office of the County Assessor and found no one had listed this property for assessment and that the property was rusted and corroded, having been exposed to the elements without care for more than ten years and that the property was unfit for use in drilling oil wells and it burdened the use of his land; that he sold said property for junk and that appellant had never asserted any title to such property until after said sale.
Appellee Abromson's answer of denial.
Appellant filed reply denying the allegations of the affirmative paragraphs of answer.
Trial to a jury which returned a verdict in favor of appellees. Judgment accordingly. The error assigned here is the overruling of appellant's motion for a new trial. The only specifications in the motion for a new trial which present any question to us are that the verdict of the jury is contrary to law, and the alleged error of the trial court in the giving or refusal to give certain instructions.
In this case the verdict and judgment was against appellant who, as plaintiff, had the burden of establishing the material allegations of his complaint. Under such circumstance this court may only examine the evidence to determine whether it conclusively leads to but the single conclusion that the evidence entitles him to relief which was denied by the verdict. Wilson, Administratrix, v. Rollings et al., 1938, 214 Ind. 155, 14 N.E.2d 905; Wadler v. Mogul Rubber Corporation et al., Ind.App.1945, 61 N.E.2d 472.
Appellant contends appellee Fleming, by his third paragraph of answer, admitted he obtained the property in question on a loan from appellant and that he held it as bailee. The record discloses said appellee did file a third paragraph of answer which perhaps warranted appellant's construction. However, it is further disclosed by the record that at the conclusion of all the evidence in this case appellee Fleming, by leave of court and without objection from appellant, withdrew said third...
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