Ringgenberg v. Hartman

• Decision Date: 03 June 1890
• Citation: 124 Ind. 186,24 N.E. 987
• Parties: Ringgenberg et al. v. Hartman et al.
• Court: Indiana Supreme Court

124 Ind. 186

24 N.E. 987

Ringgenberg et al.

v.Hartman et al.

Supreme Court of Indiana.

June 3, 1890.

On motion for rehearing. For former report, see 20 N. E. Rep. 637.

McLaren & Martindale and H. Corbin, for appellants. A. C. Capron, J. W. Parks, and M. A. O. Packard, for appellees.

Coffey, J.

This was a suit in the circuit court, by the appellees against the appellants, upon a replevin bond. The complaint alleges that prior to the 17th day of May, 1873, the appellees were the owners of a livery stock, of the value of $3,000, kept and owned by them in carrying on the livery business at Bourbon, Ind.; that on the 16th day of May, 1873, the appellants Ringgenberg and Ringgenberg commenced an action of replevin in the Marshall circuit court against the appellees, wherein they claimed to be the owners, and entitled to the possession, of all said livery stock; that they caused a writ of replevin to issue in said case, and placed the same in the hands of the sheriff of Marshall county for execution and service; that on the 17th day of May, 1873, said sheriff seized and took into his possession all of said property by virtue of said writ; that said appellants Ringgenberg and Ringgenberg executed the replevin bond in suit, with the other appellants as their sureties, and delivered the same to said sheriff, who thereupon delivered said property to the said Ringgenberg and Ringgenberg, who took the same into their possession; that upon the trial of said cause the appellees were adjudged to be the owners of said property, and recovered a judgment for the return thereof, and for costs taxed at $300; that appellants wholly failed to return said property, and converted the same to their own use. The appellants filed an answer in four paragraphs. The second is a former adjudication of the matters involved in this suit. The third paragraph is a plea of payment as to the damages and costs. The fourth paragraph admits the institution of the suit set up in the complaint, the execution of the bond in suit, the trial of the cause, and judgment of return of the property, and avers that in said trial the value of said property was found to be $1,350; that prior to that time the appellants had sold the property to the appellee Hartman, and had taken back a chattel mortgage to secure $1,600 of the purchase price; that, at the time of the commencement of this suit, $1,494.96 of said purchase money was due; that said appellees are wholly insolvent, and were so at the time of said trial; that, by the terms of said mortgage, appellants were entitled to the possession of said property upon default in the payment of any part of said purchase money; that, at the time of the commencement of said action of replevin, said Hartman was the sole owner of said property, and that the said Gallatine had no interest therein; that on the 8th day of August, 1883, $475 of said purchase money became due, and remained unpaid, and appellants became entitled to the possession of said property under the terms of said mortgage; that they elected to retain possession of said property, the same being in value $500 less than the claims of appellants against said Hartman; that appellants have paid the damages and costs recovered in said action of replevin. Prayer that the amount due on the purchase-money notes be set off against any sum found due appellees. The appellants also filed a cross-complaint setting up substantially the same facts as are averred in the fourth paragraph of the answer, with these additional allegations: “And the said defendants further show the court that, by the misprision of the clerk of the court in writing up the judgment of the court on the verdict of the jury in said replevin suit No. 6,307, he by inadvertence and mistake wrote up as and for the judgment that the defendants in that suit, the plaintiffs in this, were adjudged to be the owners of the property, the right to the possession of which was the sole and only question put in issue by the complaint and answer thereto, and that was the only question presented to and found by the jury in their verdict, and the judgment of ownership is outside and beyond the issue in the case, and the verdict of the jury, and so far it is void, and of no effect.” On motion of the appellees, the language above set forth was stricken out of the cross-complaint, and the appellants excepted. This cross-complaint also seeks to set off against the amount due appellees, as set out in their complaint, the amount due appellants on their notes and mortgage against the appellee Hartman. The fifth paragraph of answer was a general denial. The court sustained a demurrer to the fourth paragraph of the answer, and to the cross-complaint, and appellants excepted. Appellees filed a reply; and the cause, being at issue, was tried by the court without the intervention of a jury. At the request of the appellants the court made a special finding of the facts, and stated its conclusions of law thereon, and rendered judgment for the appellees.

The appellants assign as error in this court (1) that the court erred in striking out parts of appellants' cross-complaint; (2) that the court erred in sustaining the demurrer to the fourth paragraph of appellants' answer; (3) that the court erred in sustaining the demurrer...