Smith v. Emerson
| Decision Date | 10 June 1861 |
| Citation | 16 Ind. 355 |
| Parties | Smith and Another v. Emerson |
| Court | Indiana Supreme Court |
APPEAL from the Tippecanoe Common Pleas.
The judgment is affirmed, with costs.
Vinton and Miller, for the appellants.
J. J. Jones and E. A. Greenlee, for the appellee.
Emerson sued Smith before a justice of the peace, in an action of replevin for a wagon. Afterward, on motion of the plaintiff, and, as we suppose from the statements in the record, on an additional affidavit being filed, Ivers was made a co-defendant. The parties appeared before the justice, and went to trial without any objection, on the part of either of the defendants, to the affidavits or otherwise. Before the justice, the plaintiff had judgment, and the defendants appealed. In the Common Pleas, Ivers moved to dismiss the cause as to him. This motion was correctly overruled. No ground of the motion appears by the record to have been stated. If there was any defect in the affidavits, or manner of bringing the defendants into Court, they were cured by appearance before the justice, and going to trial on the merits without making any objection. Perkins v. Smith, 4 Blackf. 299.
The defendant Ivers then filed a paper, which is called a disclaimer, as follows: "The said defendant, William Ivers, for answer to said complaint against him, says that he claims no interest in said property; wherefore he asks that as to him said suit may be dismissed." On this paper he renewed his motion to dismiss the cause as to him, but the motion was overruled, and the paper stricken out. There was no error in these rulings. The paper filed was no answer to the complaint, nor was the fact that Ivers claimed no interest in the property any reason for dismissing the suit against him for a wrongful taking and detention of it.
The cause was tried by a jury, and the result was a verdict and judgment for the plaintiff.
The only remaining question in the case is, whether the evidence sustains the verdict. We can not disturb the case on the evidence. There have been two verdicts for the plaintiff, and it is not clear that they were wrong.
The judgment is affirmed, with costs.
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Clendenning v. Guise
... ... upon appeal. (20 Ency. L., 1st ed., 1082; Nichols v ... Standish, 48 Conn. 321; Smith v. Emerson, 16 ... Ind. 355; Frink v. Flanagan, 6 Ill. 35; Cobbey on ... Replevin, 726, 729; 1 abb. Pr. R., 248.) The justice, at any ... rate, ... ...
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Barruel v. Irwin
...irregularities and insufficiencies are waived by pleading to the merits, and cured by verdict: Frink v. Flanagan , 6 Ill. 35; Smith v. Emmerson , 16 Ind. 355; Bales Scott , 26 Ind. 202. The affidavit and writ in this case, if defective, were amendable: Jacques v. Sanderson , 8 Cush. 271; Fr......
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Nollkamper v. Wyatt & Abbington
... ... Replevin, sec. 182); and the latter must specify the property ... to be replevied. (Id., sec. 169; Welch v. Smith, 45 ... Cal. 230; Stevens v. Townsend, 1 Mich. 92; ... DeWitt v. Morris, 13 Wend. 456.) The description was ... insufficient to convey title and ... (Wilson v ... Macklin, 7 Neb. 52; Craines v. Cunningham, 13 ... Neb. 205; Wells on Replevin, sec. 657; Smith v ... Emerson, 16 Ind. 355; Baker v. Dubois, 32 Mich ... 92.) The description is such as would have been good in a ... chattel mortgage and is sufficient ... ...
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Sakariason v. James
...must be taken advantage of before pleading to the merits; if not, they will be considered as waived. Wells on Replevin, § 657; Smith v. Emerson, 16 Ind. 355; Tripp v. Howe, 45 Vt. 523; Eddy v. Beal, 34 Ind. 159; Baker v. Dubois, 32 Mich. 92. For the reasons stated, we find no merit in the f......