Sims v. Dame

• Decision Date: 24 January 1888
• Docket Number: 13,025
• Citation: 15 N.E. 217,113 Ind. 127
• Parties: Sims v. Dame
• Court: Indiana Supreme Court

15 N.E. 217

113 Ind. 127

Sims v. Dame

No. 13,025

Supreme Court of Indiana

January 24, 1888

From the Clinton Circuit Court.

The judgment is affirmed, at the appellant's costs.

J. N Sims, for appellant.

W. A Staley, for appellee.

OPINION

Niblack, J.

The original complaint in this case consisted of two paragraphs. While the first paragraph contained some phraseology peculiar to the action of replevin, it, in legal effect, only inferentially charged the conversion by the defendants, Milton L. Sims and Alfred Maudlin, of two hundred bushels of wheat belonging to the plaintiff, Jacob Dame, of the alleged value of two hundred dollars.

The second charged the defendants with having wrongfully and forcibly taken possession of fifty acres of growing wheat belonging to the plaintiff, and with having converted the wheat to their own use.

The complaint was neither signed by the plaintiff nor by his attorney, but a summons was nevertheless issued upon it, which was served on Sims, and returned "not found" as to Maudlin. Sims entered a special appearance to the action, and moved to quash the summons because the complaint was not signed as required by section 358, R. S. 1881. The plaintiff thereupon entered a counter-motion for leave to sign the complaint, which was granted, and the complaint being then signed by the plaintiff's attorney, the motion to quash the summons was overruled.

The plaintiff afterwards filed an additional paragraph to his complaint, charging the defendants with having wrongfully and forcibly taken possession of fifty acres of wheat standing in the shock and belonging to the plaintiff, and with having converted the wheat to their own use.

There was an answer in denial, a trial by the court and a finding and judgment against Sims for $ 85.

A motion for a new trial, challenging the sufficiency of the evidence, and a motion in arrest of judgment, were each in its order submitted and overruled before judgment was awarded.

There was evidence tending to show that, in March, 1884, Dame went to work for and to live with Maudlin until the following March, with the understanding that the former was to do whatever work the latter might require him to do; that, in the summer of 1884, Maudlin rented some land of a third person to be sowed in wheat, one-third of which, when matured, was to go to the owner of the land for rent; that afterwards, Maudlin agreed with Dame that if he, Dame, would assist in sowing and harvesting the wheat, he should have one-third of the remaining two-thirds which the land might yield; that Dame accordingly assisted Maudlin to sow forty-four acres of the land, rented by the latter as above, in wheat; that, early in October, 1884, which was after the wheat had been sown, Maudlin directed Dame to husk some corn to be used in feeding hogs, which the latter, for some reason not fully explained, refused to do; that Maudlin thereupon ordered Dame to leave his house and quit his service, which Dame accordingly did; that Maudlin, assuming that Dame had, by refusing to perform work required of him, as above stated, forfeited all claim to an interest in the wheat, afterwards, and during the succeeding winter, sold and transferred the possession of the entire crop of growing wheat to Sims; that, in the summer of 1885, when the time for harvesting the wheat had arrived, Dame went to Sims and, after demanding a share of the wheat, offered to assist him in harvesting it; that Sims very emphatically denied all claim on Dame's part to any interest in the wheat, and refused to permit him to assist in...