Rocco v. Server

• Decision Date: 08 March 1929
• Docket Number: No. 13330.,13330.
• Citation: 89 Ind.App. 457,165 N.E. 335
• Parties: ROCCO v. SERVER et al.
• Court: Indiana Appellate Court

89 Ind.App. 457

165 N.E. 335

ROCCO

v.SERVER et al.

No. 13330.

Appellate Court of Indiana, in Banc.

March 8, 1929.

Appeal from Superior Court, Marion County; Wm. O. Dunlavy, Judge.

Action by F. P. Rocco against Melvin R. Server and the Commercial Credit Company. Judgment for defendants, and plaintiff appeals. Affirmed.

Walter O. Lewis and Henderson & Henderson, all of Indianapolis, for appellant.

Clyde P. Miller, of Indianapolis, for appellees.

NICHOLS, J.

Action by appellant in replevin, seeking to recover from appellees the immediate possession of an automobile and damages for the unlawful and wrongful detention thereof.

There was a trial by court and a finding for appellees, on which judgment was rendered that appellant take nothing, from which this appeal; appellant assigning as error the court's action in overruling its motion for a new trial, presenting the insufficiency of the evidence to sustain the decision of the court and that the decision is contrary to law.

Appellant was an automobile dealer in Los Angeles, Cal., and one O'Brien had negotiated to purchase the car in question, and such negotiations were had that the dealer agreed to sell and O'Brien to buy it at an agreed price.

O'Brien presented a check which appellant took upon the representation of O'Brien that he had in a bank in Long Beach, Cal., on which the check was drawn, $5,000, showing to appellant a deposit slip for that amount in the bank. This was after banking hours on Saturday afternoon, and early on Monday appellant learned that he had never had any account therein.

Upon the issuance of said check and said representations, appellant delivered the car and an invoice, or bill of sale, on his letterhead, describing the car, and marked it “Paid” over his own signature.

Appellant went to the Auto Club with O'Brien, turned in a report of sale, and got the license plates. Appellant then filled out an application for a certificate of ownership, naming “E. O'Brien” as owner, filling in all the blanks as to license number and description of car, as required by the law, and mailed this application, with O'Brien's name subscribed thereto, to the motor vehicle department for O'Brien, and such application for certificate of ownership was approved by the department and the certificate. “Pink Slip,” was duly mailed by the department to O'Brien at the address furnished by Rocco.

Appellant's statement that the application was not approved, and certificate of title was not issued, is not sustained by the evidence as set out in his brief. When the certificate of title was mailed to O'Brien at the address given in his application, the motor vehicle department had done all...