The Louisville, Evansville and St. Louis Railway Company v. Payne

• Decision Date: 07 October 1885
• Docket Number: 11,959
• Citation: 2 N.E. 582,103 Ind. 183
• Parties: The Louisville, Evansville and St. Louis Railway Company v. Payne et al
• Court: Indiana Supreme Court

2 N.E. 582

103 Ind. 183

The Louisville, Evansville and St. Louis Railway Company v. Payne et al

No. 11,959

Supreme Court of Indiana

October 7, 1885

From the Dubois Circuit Court.

The judgment is affirmed, with costs.

H. S Downey and O. A. Trippett, for appellant.

OPINION

Howk J.

The only error assigned by the appellant, the plaintiff below upon the record of this cause, is the decision of the court in sustaining the separate demurrers of the appellees for the alleged want of facts, to its complaint.

In its complaint, the appellant alleged that it was the owner, and lawfully entitled to the possession, of certain described personal property; that such personal property had not been taken for a tax, assessment or fine pursuant to any statute, or seized under an execution or attachment against the appellant's property; that such property had been wrongfully detained by the appellees, under color of an execution issued by R. M. Capehart, justice of the peace of Pike county, Indiana, in favor of appellee Payne and against the property of the appellant, which execution, and the judgment upon which it purports to have been issued, as appellant believed and charged, were absolutely void; that appellant estimated the value of such personal property at the sum of $ 250; and that such property was detained at Velpen, in the county of Pike. Wherefore, etc.

The question for our decision is this: Does the appellant's complaint state sufficient facts to constitute a cause of action? Or, in other words, does the complaint show by its allegations of facts, that the possession of appellant's personal property was, in the language of the statute, "unlawfully detained" by the appellees? Section 1266, R. S. 1881, provides as follows: "When any personal goods are wrongfully taken, or unlawfully detained, from the owner or person claiming the possession thereof, or, when taken on execution or attachment, are claimed by any person other than the defendant, the owner or claimant may bring an action for the possession thereof."

In this case the appellant claimed the delivery of the property, and its complaint was prepared so that when verified, as it was, it would also serve for the affidavit required in such case by section 1267, R. S. 1881. In that section of the code it is provided that such an affidavit must show:

"First. That the plaintiff is the owner of the property, or that he is then lawfully entitled to the possession thereof, and particularly describe it.

"Second. That the same has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution or attachment against the property of the plaintiff, or, if so seized, that it is, by statute, exempt from such seizure.

"Third. That the property has been wrongfully taken and is unlawfully detained by the defendant, or is unlawfully detained.

"Fourth. The estimated value of the property, and in what county the same is believed to be detained."

It has been held by this court, and correctly so we think, that in actions for the possession of personal property, the plaintiff's complaint, if it contains the statutory requisites of an affidavit to obtain an order for the delivery of the property, and if it be verified, may subserve the two-fold purpose of complaint and affidavit. Cox v. Albert, 78 Ind. 241. But, of course, the sufficiency of such verified complaint, as a cause of action, could be tested by demurrer, and, as an affidavit, by motion to quash the order or writ issued thereon. In the case in hand, we have given the substance of appellant's verified complaint, almost in the language of the pleader. It will be observed that the appellant has not alleged that its personal property was wrongfully taken or seized by the appellees; but it has attempted to charge them with the unlawful detention of its property as its sole cause of action. The detention of its property is twice alleged in the complaint, and, as the language used by the pleader is peculiar at least, we will quote it literally. The first allegation is as follows: "That the said property has been wrongfully detained by the defendants," etc. The second allegation of the complaint, in regard to the detention of the property, is in these words: "And that the same is detained at Velpen, in the county of Pike."

This second allegation is clearly insufficient, for two reasons 1. ...