Hillel v. Julius H. Buettner Furniture & Carpet Co.

• Decision Date: 23 June 1916
• Docket Number: No. 9050.,9050.
• Citation: 113 N.E. 12,62 Ind.App. 481
• Court: Indiana Appellate Court
• Parties: HILLEL v. JULIUS H. BUETTNER FURNITURE & CARPET CO.

62 Ind.App. 481

113 N.E. 12

HILLEL

v.JULIUS H. BUETTNER FURNITURE & CARPET CO.

No. 9050.

Appellate Court of Indiana, Division No. 2.

June 23, 1916.

Appeal from Superior Court, Lake County; Virgil S. Reiter, Judge.

Action by the Julius H. Buettner Furniture & Carpet Company against Etta Hillel. Judgment for plaintiff, and defendant appeals. Affirmed.

Marcus Hershcovitz, of Indiana Harbor, for appellant. James W. Brissey, of Indiana Harbor, for appellee.

IBACH, J.

Appellee brought this action for replevin for certain household goods alleged to be in appellant's possession and unlawfully detained by her. To this complaint appellant filed her verified answer in general denial. A trial by the court resulted in a general finding and judgment for appellee. Appellant's motion for new trial was overruled, and this is assigned as error. This motion was based on a number of grounds. Those argued are:

(1) “The judgment is clearly against the weight of the evidence. (2) The finding of the court is not sustained by the evidence. (3) Error of the court in admitting in evidence a certain written article of agreement supposed to have been entered into betwen the plaintiff and the husband of defendant, bearing date of April 15, 1911.”

[1] The first specification is not a statutory ground for a new trial, and therefore presents no question for review. Burns 1914, § 585, subsec. 6.

[2] In the second specification the word “finding” is used instead of the word “decision”; but it has been held that the former word is equivalent to the word used in the statute, when the cause has been tried by the court, so that the ground for a new trial in the form here appearing properly presents the question for a review of the evidence. Bump v. Sellers, 54 Ind. App. 146, 102 N. E. 875, and cases cited.

[3] The assignment that the decision “is not sustained by the evidence,” is in effect equivalent to the assignment that the decision “is not sustained by sufficient evidence.”

[4][5] The facts as they appeared from the evidence are that the appellee is a furniture dealer, and appellant's husband, N. Hillel, who has since died, obtained possession of the furniture in question by virtue of a contract of conditional sale, by the terms of which he was to pay the sum of $184.80 in weekly installments, of $2 each. Appellee was to retain title and the right to recover possession on default of the purchaser. The contract contains the further condition that in case of the violation by N. Hillel of other provisions of the contract, among which is that in case of sale or disposal, or an attempt to sell or dispose of the property, or removal of the same by N. Hillel or any one else from the then place of residence of the mortgagor, then appellee might take the property into its possession. There is evidence also from which the trial court could very properly...