Kackley v. State ex rel. Heitz

• Decision Date: 24 November 1883
• Docket Number: 10,756
• Citation: 91 Ind. 437
• Parties: Kackley et al. v. State, ex rel. Heitz
• Court: Indiana Supreme Court

91 Ind. 437

Kackley et al. v. State, ex rel. Heitz

No. 10,756

Supreme Court of Indiana

November 24, 1883

From the Knox Circuit Court.

The judgment is affirmed, at the appellants' costs.

W. H DeWolf and S. N. Chambers, for appellants.

H. S Cauthorn, J. M. Boyle, F. W. Viehe and R. G. Evans, for appellee.

OPINION

Best C.

The State, on relation of Anthony Heitz, brought this action against James E. Kackley and his sureties upon his official bond as sheriff, to recover such damages as the relator had sustained by reason of the alleged fact that such sheriff, upon an execution against William A. Wendling, had sold and delivered certain personal property of said Wendling upon which the relator had a prior lien by mortgage, without requiring the purchaser to comply with the conditions of such mortgage.

Issues were formed, a trial had, and a verdict returned for $ 725, upon which, over a motion for a new trial, judgment was rendered. This ruling is assigned as error.

Under the assignment that the verdict was contrary to the evidence the appellants insist that nothing was due upon the appellee's mortgage. The mortgage was upon a stock of drugs, counters, shelving, soda fountain, etc., the possession of which the mortgagor retained, and by the terms of the mortgage all sales in excess of current expenses were to be applied in payment of the mortgage. The property was not sold for more than a year after the mortgage was executed, and the appellants insist that enough of the goods were sold within this time to extinguish the mortgage. This was a question of fact that was, for aught that appears, properly submitted to the jury; and an examination of the evidence leads us to the conclusion that the fact was properly found. The mortgage was for $ 2,500, and the property embraced in it was shortly before purchased in trade for $ 3,000, and was not worth more than that sum. The evidence tended to show that the greater part of this property remained unsold when the sheriff made his sale. The mortgagor, however, testified that his daily sales of drugs, medicines, and cigars averaged $ 15, and that the money realized therefrom was used in replenishing the stock. As the mortgagor had possession of the property about 13 months after the execution of the mortgage, the appellants insist that he must have sold more than $ 4,000 of such property, and as current expenses were only about $ 900, the excess was sufficient to extinguish the mortgage. A mere statement of these facts furnishes a complete answer to this position. They show that the stock was not reduced enough by sales to extinguish the mortgage,...