State ex rel. Braden v. Krug

• Decision Date: 29 March 1884
• Docket Number: 10,785
• Citation: 94 Ind. 366
• Parties: The State, ex rel. Braden, v. Krug et al
• Court: Indiana Supreme Court

94 Ind. 366

The State, ex rel. Braden, v. Krug et al

No. 10,785

Supreme Court of Indiana

March 29, 1884

From the Montgomery Circuit Court.

Affirmed, with costs.

E. C Snyder, for appellant.

G. W Paul, M. D. White, J. E. Humphries, W. C. Wilson, and J. H Adams, for appellees.

OPINION

Hammond, J.

This was an action against the appellees Krug and his sureties, upon his official bond as sheriff of Montgomery county. The complaint was in two paragraphs. The first alleged, in substance, that on January 18th, 1879, one William B. Patch made an assignment of all his property to the relator for the benefit of the assignor's creditors, which assignment was duly recorded ten days afterwards; that after the making and recording of the assignment, a judgment was recovered against Patch in the Montgomery Circuit Court; that an execution issued on said judgment and was placed in the hands of Krug as such sheriff, and was by him wrongfully levied upon certain personal property, of the value of $ 5,000, which had been assigned to the relator as aforesaid; and that said Krug wrongfully sold said property, to the relator's damage, etc.

The second paragraph of the complaint is the same as the first except that it simply avers that the relator was the owner of the property, without giving the source of his title.

The appellees answered in five paragraphs, the second, third and fourth of which were subsequently withdrawn.

The appellant demurred separately to the first and fifth paragraphs of the answer for want of facts. The demurrer was overruled. The appellant excepted, and, declining to reply, judgment was rendered in favor of the appellees for costs. The ruling upon the demurrer constitutes the alleged error complained of in this court.

The first and fifth paragraphs of answer were pleaded as a former adjudication. The facts alleged were substantially alike in both paragraphs, and were in effect as follows:

That the relator never had any claim to the property levied upon and sold by Krug, except as assignee of Patch; that after it was levied upon and sold, as alleged in the appellant's complaint, said appellant, on the relation of said relator, filed in the court below a complaint against the appellees and one David Enoch on the bond now in suit, alleging in said complaint the same facts as are set up in the present complaint as a breach of the conditions of said bond; that the defendants in said action appeared thereto, and filed a demurrer to the complaint, which the court overruled, and to which ruling said defendants excepted, and filed an answer in four paragraphs, one being the general denial and the others specially pleading facts showing that the relator had no title to the property except such as he derived by virtue of the assignment from Patch, and that such assignment was fraudulent and void as to Patch's creditors; that the appellant in said action demurred separately to the special paragraphs of answer for want of facts to constitute a defence, which demurrer was overruled, and the appellant excepted to the ruling and replied by the general denial; that upon the issues thus made the case was tried by the court, by agreement of parties; that the appellant introduced evidence tending to prove the allegations of the complaint, and that the same personal property described in the complaint in the present case, and no other or different property, had been levied on and sold by Krug as such sheriff, as alleged in the complaint in the former action, and in the complaint in the present suit; that the defendants in said cause thereupon introduced evidence tending to prove the allegations of the several paragraphs of their answer; that the court trying the cause, after hearing all the evidence and being duly advised in the premises, found for the defendants, and rendered judgment accordingly; that the appellant, on the relation aforesaid, appealed said cause to the Supreme Court, assigning for error the overruling of its demurrer to the special paragraphs of answer; that upon submission the Supreme Court affirmed the judgment of the court below, not upon the errors assigned, but upon the ground that the appellant could not complain of the overruling by the court below of the demurrer to the affirmative paragraphs of answer, for the reason that the appellant's complaint in said case did not state facts sufficient to constitute a cause of action in this, that said complaint gave no specific description of the property levied upon and sold by the sheriff, did not set out a copy of the assignment under which the relator claimed the property, and did not aver that such assignment was executed and recorded before the issuing and levying of the execution complained of. It is further averred that on the trial of said cause the appellant introduced in evidence said assignment, with evidence tending to prove its execution and recording; and also introduced evidence tending to prove a specific description of the property and its value, which was charged in the former and present action to have been levied upon and sold by the sheriff. The fifth paragraph of the answer in the present case closes as follows:

"And the defendants herein further aver that the levy, seizure and conversion by the defendant sheriff Krug, of the personal property specifically described in the complaint, as the property of the relator Braden, and as alleged in the complaint in this cause, and for which a judgment in damages is sought to be recovered, are one and the same levy, seizure and conversion of the same property by the defendant sheriff Krug, for which a judgment in damages was sought to be recovered in said former action so tried and determined as aforesaid.

"And the defendants herein...