Smith v. Mosby

• Decision Date: 18 September 1884
• Docket Number: 11,638
• Citation: Smith v. Mosby, 98 Ind. 445 (Ind. 1884)
• Parties: Smith et al. v. Mosby et al
• Court: Indiana Supreme Court

98 Ind. 445

Smith et al. v. Mosby et al

No. 11,638

Supreme Court of Indiana

September 18, 1884

Petition for a Rehearing Overruled Dec. 19, 1884.

From the Decatur Circuit Court.

W. A Moore, B. F. Bennett, J. D. Miller and F. E. Gavin, for appellants.

J. S Scobey, for appellees.

OPINION

Best, C.

The appellants brought this action upon a bond of replevin executed by the appellees.

The complaint alleged, in substance, that one Samuel B. Edwards recovered a judgment against Benjamin F. Henryet al., in the Decatur Circuit Court, for $ 662.35; that the appellantAndrew J. Smith, as sheriff of said county, with an execution issued upon said judgment, on the 29th day of September, 1879, levied upon a stock of goods belonging to said Henry; that while said Smith held possession of said goods as such sheriff, John D. Mosby and Andrew J. Hobson, two of the appellees, on the 3d day of October, 1879, instituted an action of replevin in the Decatur Circuit Court against said Smith for said goods, alleging in their complaint that they were the owners and entitled to the possession, fixing the value of said goods in their affidavit at $ 900, and then obtained possession of the same by virtue of a bond of replevin executed by them and their co-appellees as their sureties; that an answer of denial was filed, an issue was formed, and, upon the trial, a verdict was returned that the defendant was the owner of the goods, was entitled to the possession of them and that they were worth $ 900; upon which, it appearing that the plaintiffs had possession, the court rendered an alternative judgment, awarding the defendant the possession of the goods, and in the event that they should not be returned, a judgment for their value; that the appellees have failed and neglected to return the goods, but have converted them to their own use.A copy of the bond accompanied the complaint.

As to the sum of $ 849.16, the appellees filed an answer, alleging, in substance, that before said writ became a lien upon said goods, said Henry executed to said Mosby and Hobson a chattel mortgage upon the same to secure three notes, aggregating $ 849.16, and maturing respectively, November 1st, 1879, December 25th, 1879, and January 25th, 1880; that said mortgage was duly recorded within the county where said Henry resided, within ten days after its execution, and that said Henry then was and ever since has been justly indebted to them in said sum; that said sum, with the interest thereon, is now due and unpaid, and that said property, at the time said mortgage was made, was not, nor has it since been, worth the amount of said debt; that upon the trial of said action the only evidence offered in support of the same was said mortgage, which was rejected by the court; that thereupon the jury was instructed to return a verdict for the defendant and to assess the value of the property at $ 900; that, by reason of the exclusion of said evidence, no matter was adjudicated upon said trial, except the admissibility of said evidence.Wherefore, etc.

A demurrer...