Indiana Union Traction Co. v. Bick
| Decision Date | 04 June 1907 |
| Docket Number | No. 5,879.,5,879. |
| Citation | 40 Ind.App. 451,81 N.E. 617 |
| Parties | INDIANA UNION TRACTION CO. v. BICK. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Miami County; J. N. Tillett, Judge.
Action by Jacob N. Bick against the Indiana Union Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed.J. A. Van Osdol and Loveland & Loveland, for appellant. Sayre & Hunter and Mowbray & Armitage, for appellee.
This was an action in replevin by appellee against appellant. In the first paragraph of the complaint the property is described as “a certain car plant, which is in the possession of said defendant corporation near Bunker Hill, in said county”; and in the second paragraph the property is described as “a certain car plant, which said defendant, to-wit, on the first day of January, 1904, unlawfully took and has ever since unlawfully detained in its possession near Bunker Hill, in said county and state.”
It is first argued that the complaint was insufficient for lack of such a description of the property as would guide the sheriff in serving the writ of replevin, as would enable the parties to prepare for trial, the court in admission of evidence, and the jury in deciding the issues. So far as the description of the property is concerned, the two paragraphs are substantially alike. The property is designated as “a car plant” then in the possession of the defendant and near Bunker Hill, in the county where the suit was brought. The court may not judicially know just what “a car plant” is, but the name would suggest that such property could, without very great difficulty, be found by an officer where its location is given approximately, as in this case. It is true the exact location is not given, but it is said to be near a town or village, the location of which being in that county we may assume was known to the officer. Counsel for appellant have cited a number of cases in which descriptions have been held insufficient, but an examination of these cases will disclose that a description in very general terms may be sufficient where the location of the property is given.
In Lockhart v. Little, 30 S. C. 326, 9 S. E. 511, the description was “one lot of seed cotton, about 6,000 pounds, 12 shocks of fodder, one load of corn about 15 bushels, of the total value of $250,” and was held insufficient, but in the opinion the court said: “There is not even a description as to location, which possibly might have afforded the means of identification if it had been stated.” In Hawly v. Kocher, 123 Cal. 77, 55 Pac. 696, a description of the property was held insufficient, and among the reasons given, and appearing to be important, is the fact that “there is no averment as to where the property was at the time of the commencement of the suit.” In Pierce v. Langdon, 3 Idaho (Hasb.) 141, 28 Pac. 401, the description held bad was “590 sacks of wheat,” but in that case nothing whatever was averred as to the location of the wheat. In Stevens v. Osman, 1 Mich. 92, 48 Am. Dec. 696, the description of the property was “a quantity of corn (consisting of about 200 bushels) and a quantity of rye (consisting of about 100 bushels).” It was averred that the corn and rye were “wrongfully detained in the township of Waterford, in the county of Oakland.” Had the particular place in the township been given, the court intimates the description would have been good. In Wright v. Shelt, 19 Ind. App. 1, 48 N. E. 26, the property described in the complaint was “one cow, red in color, with brindle stripes and partly white tail, dehorned, and about three years old.” The action was brought against a constable, who by virtue of an execution had levied on the cow, and, being in doubt as to whether appellee had some interest in the property, gave notice under sections 1613 and 1614, Burns' Ann. St. 1901, but in this notice described the property as “one brindle heifer supposed to be four years old.” It was held that this description was not sufficient to protect the officer under the provisions of the statute. See, also, Hoke v. Applegate, 92 Ind. 570;Malone v. Stickney, 88 Ind. 594;Smith v. Stanford, 62 Ind. 393. In James v. Fowler, 90 Ind. 563, the court said: “We are of the opinion that mere uncertainty in the description of property sought to be recovered would afford no sufficient ground for sustaining a demurrer to the complaint, and no ground whatever for sustaining a motion in arrest of judgment.” While the above statement, in so far as it...
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