Hoover v. Lewin

• Decision Date: 26 May 1914
• Docket Number: No. 8355.,8355.
• Citation: 105 N.E. 400,56 Ind.App. 367
• Parties: HOOVER, Sheriff, v. LEWIN.
• Court: Indiana Appellate Court

56 Ind.App. 367

105 N.E. 400

HOOVER, Sheriff,

v.LEWIN.

No. 8355.

Appellate Court of Indiana, Division No. 1.

May 26, 1914.

Appeal from Circuit Court, Jasper County; Charles W. Hanley, Judge.

Action by Irve Lewin against William Hoover, Sheriff of Jasper county. From a judgment for plaintiff, defendant appeals. Affirmed.Otto J. Bruce, of Crown Point, and George A. Williams, of Rensselaer, for appellant. John A. Dunlap, of Rensselaer, and W. H. Parkinson, of Indianapolis, for appellee.

SHEA, J.

Appellee Lewin filed his complaint in the Jasper circuit court in replevin, alleging in substance that he was the owner and entitled to the immediate possession of certain personal property, consisting of two horses, a wagon, and harness, of the value of $400; that appellant “unlawfully and without right holds and detains possession of said property, to his damage in the sum of $100,” demanding judgment for recovery of the property, damages for the detention thereof, and all other proper relief.

A demurrer to the complaint was overruled, and appellant then filed an answer in two paragraphs; the first a general denial, the second averring in substance the following facts: That appellant is, and since January 1, 1911, has been, the duly elected, qualified, and acting sheriff of Jasper county, Ind. That on January -, 1911, pursuant to a duly certified writ of attachment from the circuit court of Porter county, Ind., issued in a cause commenced in that court by Ella Hankins against John and Charles Lewin, he attached all the property in Jasper county, Ind., belonging to said John and Charles Lewin, and made his return on said writ to the Porter circuit court. Among other property attached were the two horses, wagon, and harness described in the complaint in this cause. That appellee is the son of one of the defendants in the cause in the Porter circuit court, and had actual knowledge of the pendency of the action in that court, and of the fact that appellant attached said property under and by virtue of the writ. That the action in the Porter circuit court has been duly tried and disposed of, a judgment rendered in favor of the plaintiff and against John and Charles Lewin, and appellant, as sheriff of Jasper county, Ind., ordered to turn over to the sheriff of Porter county all property attached by him, which he did. That appellee had actual knowledge of the foregoing facts, attended the trial of the cause in the Porter circuit court, and testified as a witness in behalf of one of the defendants. On January 4, 1911, while said cause was pending in the Porter circuit court, and after appellant had attached said property, including the two horses, wagon, and harness described in the complaint, and the same was in his possession, appellee filed three actions before a justice of the peace for Marion township in Jasper county, Ind., against appellant, in replevin, alleging that he was the owner of and entitled to possession of the property described, which was the same property involved in this action. Summons was issued in each of said actions returnable January 7, 1911, and appellant appeared to defend same on the day they were set for trial. That the complaints were sufficient to have tried the rights of property in said cases. That appellee did not prosecute said actions, but dismissed each of them, without any fault of defendant, on January 7, 1911, and prior to the trial and judgment in the cause in the Porter circuit court. That appellee never made any demand on appellant for the property described in the complaint herein, wherefore it is prayed that appellee take nothing by his complaint.

Appellee's demurrer to the second paragraph of answer was sustained, and judgment rendered that he recover from appellant the property described in the complaint.

Appellant relies on the following errors for a reversal of the cause: (1) The Jasper circuit court did not have jurisdiction of the subject-matter of the action because the property was in custodia legis of the Porter circuit court. (2) The court erred in overruling appellant's demurrer to appellee's complaint. (3) In sustaining appellee's demurrer to the second paragraph of appellant's answer. (4) In overruling appellant's motion for a new trial.

[1] It is insisted that, the property having been taken into the custody of appellant, as sheriff of Jasper county, by virtue of a duly certified writ from the Porter circuit court, the Jasper circuit court had no jurisdiction to hear and determine said cause, on the theory that property in custodia legis is in the exclusive jurisdiction of the court having such custody. Appellee states the legal proposition correctly, but the facts in this case do not sustain his contention.

Section 960, Burns 1908, of the attachment act, defines the practice if the property in controversy is claimed by a person other than the attachment defendant, and clearly contemplates an action in replevin. The statute, as well as the decided cases in our state, are based on sound reason. In the present case, for instance, the writ issued from the Porter circuit court in the usual form directed the sheriff of Jasper county (appellant) to attach and take into his possession any property belonging to the attachment defendants situate in Jasper county. Manifestly this...