Ryan v. Hurley

• Citation: 21 N.E. 463,119 Ind. 115
• Decision Date: 17 May 1889
• Docket Number: 13,732
• Parties: Ryan v. Hurley
• Court: Indiana Supreme Court

21 N.E. 463

119 Ind. 115

Ryan v. Hurley

No. 13,732

Supreme Court of Indiana

May 17, 1889

From the Madison Circuit Court.

Judgment reversed, at the costs of the appellee.

W. A Kittinger, L. M. Schwinn and E. B. McMahan, for appellant.

G. M Ballard and C. M. Greenlee, for appellee.

OPINION

Olds, J.

This is an action for the value of personal property alleged to have been owned by the appellee, the plaintiff below, and converted by the appellant, the defendant below, to his own use. The complaint is in three paragraphs. Separate demurrers were filed to each paragraph of the complaint and overruled and exceptions reserved, and the rulings on the demurrers are assigned as errors. There was an answer filed, cause put at issue and tried by the court, and a general finding in favor of the plaintiff for eighty-five dollars, and judgment in his favor for said amount.

The first paragraph of the complaint alleges, substantially, that on the 4th day of January, 1886, the plaintiff was the owner of one horse, of the value of $ 125, and that on the said day the defendant wrongfully took and converted said horse to his own use. Prayer for judgment for one hundred and twenty-five dollars. The objection urged to this paragraph is that it does not aver that the conversion was to the damage of the plaintiff. We think this paragraph sufficient. It is proper and better pleading to aver that the conversion is to the damage of the alleged owner; yet the material averments are the ownership, the value and conversion of the property. It is presumable, and properly inferable, from the allegations of ownership by the plaintiff, the value of the property and the conversion by the defendant, that the plaintiff is damaged to the amount of the value of the property. Gould Pleading, 5th ed., p. 140, section 166.

It is alleged in the second paragraph that the plaintiff was the owner of a certain horse on the 4th day of January, 1886; that the defendant obtained possession of the horse and converted it to his own use; but it is not averred that the horse was of any value, or that the plaintiff sustained any damage by reason of such conversion.

The second paragraph is clearly bad. It is contended that the case was fairly tried, and that the appellant sustained no injury by the ruling of the court on the demurrer to the second paragraph of the complaint, even if it is defective as there was a good paragraph of...