Reardon v. Higgins
| Decision Date | 31 October 1906 |
| Docket Number | No. 5,769.,5,769. |
| Citation | 39 Ind.App. 363,79 N.E. 208 |
| Parties | REARDON v. HIGGINS. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Marion County; Henry Clay Allen, Judge.
Action by David A. Higgins, administrator, against Michael H. Reardon. Judgment for plaintiff. Defendant appeals. Reversed, with instructions.
Alonzo Greene Smith, Bernard Korbly, Frank T. Edenharter, George F. Mull, and J. Frank Cowern, for appellant. T. S. Adams and W. M. Taylor, for appepllee.
Higgins, guardian of Hugh F. Adams, a person of unsound mind, commenced this action in replevin against Michael H. Reardon to recover possession of a horse and damages for its detention. The ward died pending the suit, and the administrator, Higgins, was substituted as plaintiff. The complaint is in two paragraphs. The first alleges that David A. Higgins, the duly appointed guardian of Hugh F. Adams, a person of unsound mind, as such guardian complains of Michael H. Reardon, the defendant, and says that plaintiff's said ward is the owner, and entitled to the immediate possession of, one bay horse, about seven years old, known as and named “St. Patrick,” of the value of $4,000, and which horse the defendant wrongfully took possession of without right and unlawfully detains from the plaintiff. The second alleges in substance, that plaintiff's ward is the owner of, and entitled to the immediate possession of, one bay pacing horse, about seven years old, generally known as and named “St. Patrick,” of the value of $4,000; the possession of which horse the defendant unlawfully detains from plaintiff. Each paragraph demands judgment for the possession of the horse, and the sum of $1,000. Higgins filed his affidavit, as required by section 1287, Burns' Ann. St. 1901, claiming the immediate delivery of said horse to him as guardian. Afterwards a writ of replevin was issued, directed to the sheriff of Marion county, Ind., and the return of the sheriff thereon shows that he took the horse in his possession, that the defendant failed to file bond within the time prescribed by law, that the plaintiff filed a good and sufficient bond within the time prescribed by law, and that the said horse was thereupon delivered by the sheriff to the plaintiff. To the first and second paragraphs of complaint the defendant answered by general denial. The defendant filed an amended cross-complaint, to which a demurrer was sustained. Upon the issues formed upon the complaint, the answer in general denial thereto, the cause was submitted to the court, and, upon the request of defendant, a special finding of facts was made and conclusions of law stated thereon, and judgment rendered in favor of plaintiff, that he recover of the defendant the property described in the complaint, and one cent damages for the detention of said property, together with costs and charges. To the conclusion of law, the defendant, at the time, excepted. The errors relied on for reversal are the action of the court in sustaining the demurrer of appellee to the amended cross-complaint of appellant, and in the conclusions of law upon the special finding of facts.
Said cross-complaint alleges that on or about the 1st day of August, 1901, a certain oral agreement was entered into between the cross-complainant and one Hugh F. Adams, whereby the cross-complainant agreed to furnish money to said Adams from time to time during the horse racing season of 1901, for the purpose of enabling Adams to ship his race horse, known as “St. Patrick,” to various race courses throughout the country, and to pay for the feeding and care of said horse on said trips. And said Adams, in consideration of the advances to be so made by cross-complainant, agreed that said horse should be security for the same and that he (said Adams) would, at the end of said horse-racing season, ship said horse to the cross-complainant at Indianapolis, and deliver said horse to said cross-complainant, to hold as security for the money so advanced, and to sell said horse, if said advancements were not paid within a reasonable time after said racing season and reimburse himself out of the proceeds of said sale. Cross-complainant says: That, in pursuance of said agreement, he advanced said Adams divers sums of money, amounting in all to $663.50 for said purposes; that said Adams, at the end of said racing reason, in violation of his said agreement with cross-complainant, and without his consent, shipped said horse to Danville, Ind., the home of said Adams, instead of shipping him to cross-complainant at Indianapolis, in accordance with the terms of said agreement. That afterwards, to wit, in the month of December, 1901, cross-complainant demanded of said Adams the repayment of the money so advanced under said agreement. That said Adams neglected and failed to pay said money, or any part thereof, whereupon the cross-complainant demanded of him the possession of said horse. That afterwards, without the knowledge or consent of cross-complainant, said Adams turned said horse over to one Frank McVey, for the purpose of having him fed, cared for, and trained-the said McVey being in the business of feeding, caring for, and training horses-and said McVey, pursuant to his agreement with said Adams, shipped said horse to his stables at Indianapolis, and there cared for and trained him for a period of about four months. That, upon learning that said horse was in Indianapolis at said McVey's stable, cross-complainant informed said McVey of his right to the custody of said horse by virtue of said agreement, and demanded possession thereof, but said McVey refused to deliver said horse to said cross-complainant until the charges for feeding, caring for, and training said horse should be paid him. And cross-complainant, thereupon, on the 26th day of August, 1902, paid said McVey the amount of his claim, to wit, $104 and took from said McVey a written assignment of his said claim, and that said cross-complainant is and ever since has been the owner of said claim. That said McVey, at the same time delivered the possession of said horse to cross-complainant. That by the purchase of said McVey's claim for the purpose stated above, the cross-complainant became, and is, subrogated to the rights of said McVey thereunder. That cross-complainant thereafter held the possession of said horse by virtue of the facts alleged herein, until the same was taken from him in this action. That the debt owing from said Adams to him, arising out of said agreement, and the claim assigned to him by said McVey, are due and wholly unpaid, and he says that, by reason of the facts alleged, a lien upon said horse exists in his favor in the sum of $767.50, with interest thereon, and that he is entitled to the possession of said horse until said lien shall have been paid. He asks the court to declare a lien on said horse, in his favor, in the amount of $767.50 and interest, and asks that he have judgment for the possession of said horse. He further prays that his lien be foreclosed, and for a decree ordering the sale of said horse to satisfy his said lien, and for all other proper relief. McVey filed his answer to the amended cross-complaint, admitting the allegations thereof, and that he had no claim or interest in the horse involved in said cause of action, and had no claim or interest whatever in the account assigned by him to Michael H. Reardon, the complainant, as alleged in said cross-complaint.
This suit is for the possession of personal property-the gist of the action is necessarily its unlawful detention. The question presented under the counterclaim and under the special findings of fact (for the averments of the...
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