Horning v. McGill

• Decision Date: 31 May 1917
• Docket Number: No. 23269.,23269.
• Citation: 188 Ind. 332,116 N.E. 303
• Parties: HORNING v. McGILL.
• Court: Indiana Supreme Court

188 Ind. 332

116 N.E. 303

HORNING

v.McGILL.

No. 23269.

Supreme Court of Indiana.

May 31, 1917.

Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.

Replevin by Emanuel M. Horning against William McGill. Judgment for defendant, and plaintiff appeals. Affirmed.

Lenn J. Oare and Russell W. Geyer, both of South Bend, for appellant. John W. Kitch, of Plymouth, and John S. Buczkowski, of South Bend, for appellee.

ERWIN, C. J.

This action was in replevin, brought by appellant against appellee before a justice of the peace. Appeal was taken to the circuit court.

The complaint in one paragraph alleges unlawful detention of personal property, which complaint was answered in three paragraphs. Demurrer to the second and third paragraphs of answer were sustained. Appellee then filed his amended second paragraph of answer. Upon the issues so joined trial was had. At the end of plaintiff's (appellant's) evidence appellee made a motion for a peremptory instruction to direct a verdict for defendant (appellee), which was sustained by the court. The court thereupon directed a verdict for appellee. Overruling of the motion for a new trial is assigned as error in this court.

The only question for the consideration of this court is the giving by the court of the peremptory instruction to the jury directing a verdict for the defendant.

The evidence shows that appellee entered into a contract of sale for certain articles with the East Jefferson Boulevard Furniture Store; that appellant was the owner of the said store; that no certificate showing ownership was filed with the clerk of the county.

The statute in this state makes it unlawful for any person or persons conducting or transacting business in this state under any name, designation, or title other than the real name or names of the persons conducting such business without first filing a certificate stating the firm or partnership, place of business, and the full name and residence of the persons engaged in or transacting such business with the clerk of the circuit court of the county in which place or places of business may be situated. Acts 1909, p. 358; Burns 1914, § 9711a et seq. The appellant had not complied with the provisions of this law.

“If the statute prescribes what shall be done before the right to *** carry on a certain business is granted, and prohibits such business under penalty, the fact that the violation of the act is made a misdemeanor implies a prohibition, and...