Rowe v. Major

• Decision Date: 12 October 1883
• Docket Number: 10,405
• Citation: 92 Ind. 206
• Parties: Rowe, Assignee, v. Major et al
• Court: Indiana Supreme Court

92 Ind. 206

Rowe, Assignee, v. Major et al

No. 10,405

Supreme Court of Indiana

October 12, 1883

Petition for a Rehearing Overruled Dec. 14, 1883.

From the Morgan Circuit Court.

The judgment is affirmed, with costs.

G. A Adams, L. Ferguson, J. S. Newby and H. A. Smock, for appellant.

W. R Harrison and W. E. McCord, for appellees.

OPINION

Howk J.

In this action, the appellant, as the assignee of the Martinsville and White River Valley Gravel Road Company, sued the appellees Noah J. Major, Robert H. Tarleton, George W. Egbert, Tighlman H. Parks, Ebenezer Henderson and William R. Harrison, in a complaint of two paragraphs. In the first paragraph, the appellant alleged, in substance, that the said gravel road company was a duly organized corporation in this State, and as such constructed a gravel road from the town of Martinsville to Stotts' creek, in Morgan county, a distance of eight miles, and for twelve years last past had owned and operated such road, collecting tolls, etc.; that said corporation was still in existence; that on January 8th, 1881, said company being largely in debt and in embarrassed and failing circumstances, by its board of directors and officers, made an assignment of all its rights, credits, franchises and effects, to the appellant, for the benefit of all the bona fide creditors of said company; which assignment was by said company properly executed and duly recorded in the deed records of Morgan county, and the appellant qualified, as such assignee, by giving bond and taking the prescribed oath for the faithful performance of his duties as such assignee; that the appellees, without right so to do, were setting up a claim of ownership, and attempting to use and exercise control of and in and to the road-bed, and claiming the right to collect toll for travel over and upon said road; that appellees were then collecting toll for travelling over and upon said road, and were threatening to and would continue to take toll for such travel without right, if not enjoined by the court; the franchises whereof and the right to collect toll, with the ownership of the road-bed, the appellant averred, belonged to said company and to him by virtue of said assignment; and that appellant was still acting as such assignee. Wherefore, etc.

In the second paragraph of his complaint, after stating substantially the same matters as were stated in the first paragraph, the appellant further alleged that on the day of -----, 187-, the appellee Henderson recovered a judgment against said gravel road company, in the court below, for the sum of $ -----, and costs taxed at $ -----, and on the same day numerous other judgments were rendered in said court, in favor of different parties, against such company; that on December 2d, 1880, an execution was issued upon each of said judgments and placed in the hands of the sheriff of Morgan county, who on the same day levied all such executions including the one in favor of appellee Henderson, on all the personal property of said company, such as toll-houses, scrapers, etc., and at the same time attempted to levy the same upon the franchises of said company, such as the right to take and collect toll for travel over and upon its road, and after advertising the same, on January 1st, 1881, offered and sold the toll-houses, scrapers, plows and other personal property belonging to said company, and at the same time pretended to sell the right and franchise of the company to take and collect toll for travel over its road; that said sale and pretended sale were made, or pretended to be made, to the appellees herein, who claimed to have purchased at such sale not only the personal property, but also the corporate franchises of said company, and immediately thereafter, without right as the appellant averred, the appellees took possession of said road and began taking and collecting toll for travel over and upon such road, and had without right ousted the appellant from the possession and control of said road and from the right to take and collect toll for travel thereon, and were then denying such right to the appellant; and that the appellees were then taking toll for travel over said road, and would continue so to do, if not restrained by an order of the court; and the appellant averred that the sale or attempted sale of the franchises of said company passed no title thereto to the appellees, and, therefore, he demanded that so much of such sale be set aside and declared void, and that the right to take and collect such toll be declared to be in the appellant, as the assignee of said company, and that the appellees be enjoined from collecting such toll or claiming title thereto, and for all other proper relief.

The cause was put at issue and tried by the court, and a finding was made for the appellees, the defendants below; and, over the appellant's motion for a new trial, the court rendered judgment against him for appellees' costs.

In this court, the following decisions below are assigned as errors by the appellant:

1. The overruling of his motion to strike out part of appellees' answer;

2. The overruling of his demurrer to appellees' answer, except as to general denial;

3. The sustaining of appellees' demurrer to the first paragraph of appellant's reply; and,

4. The overruling of his motion for a new trial.

Of the first of these errors it will suffice to say that, under repeated decisions of this court, even if the ruling were erroneous, it would not constitute an available error for the reversal of the judgment. The motion to strike out is based upon the theory that the objectionable matter in the pleading is mere surplusage; and where the motion is overruled, the effect of the ruling is, at most, to leave surplusage in the record, which will not vitiate the pleading, if it is otherwise good. Mires v. Alley, 51 Ind. 507; House v. McKinney, 54 Ind. 240; City of Crawfordsville v. Brundage, 57 Ind. 262.

2. In their answer, the appellees alleged, in substance, that on January 1st, 1881, they purchased the gravel road, with all its rights and franchises set forth in appellant's complaint, at public sale by the sheriff, which sale was made by the sheriff in pursuance of levies of sundry executions issued to him by the clerk of the court below, to enforce the collection of judgments therein rendered against appellant's assignor, in favor of the...