The Shipman Coal Mining And Manufacturing Company v. Pfeiffer
| Decision Date | 08 January 1895 |
| Docket Number | 1,358 |
| Citation | 39 N.E. 291,11 Ind.App. 445 |
| Parties | THE SHIPMAN COAL MINING AND MANUFACTURING COMPANY ET AL. v. PFEIFFER |
| Court | Indiana Appellate Court |
From the Fountain Circuit Court.
Judgment reversed.
L Nebeker and D. W. Simms, for appellants.
J. E Florea, for appellee.
This is an action of replevin by the appellee against the appellants. In his complaint, the appellee alleges that he is the owner and entitled to the possession of "one Wardevill channeller and cutting tools, consisting of forty-two steel bits, six foot, six-inch cut," and "one Ingersoll sargent-bar channeller and drill, and tools, consisting of twenty-two steel bits," all of the value of $ 316, which is detained from him by the appellants without right, etc. Upon the filing of the proper affidavit, a writ of replevin was issued and the property seized by the sheriff. The appellants filed an answer in two paragraphs, the first of which is a general denial, and the second what the appellants' counsel denominate a counterclaim to set aside the sale of the property in controversy, at sheriff's sale, under which the appellee claims title. To this pleading the appellee filed a reply in two paragraphs, one of which was a general denial, and the other matter in avoidance of the second paragraph of the answer. There was a trial by the court and a finding that the plaintiff (appellee) was the owner and entitled to the property in controversy, and that the value thereof was $ 325. A motion for a new trial by the appellants, both as to the complaint and counterclaim, was filed and overruled, and judgment was entered upon the finding in appellee's favor. Both appellants have assigned errors jointly, and the appellant corporation has also assigned separate specifications of error. The principal question discussed relates to the sufficiency of the evidence to sustain the finding.
It is earnestly insisted by appellant's counsel that under the evidence the appellants were entitled to a finding in their favor upon the complaint, and also to have the sheriff's sale to the appellee of the property in controversy set aside, under the counterclaim. The appellee's counsel contend, on the other hand, that there is evidence tending to support the finding upon the complaint, and that, as to the so-called counterclaim, it amounts to no more than an answer in bar, and that it was treated as such by the court and by the appellants themselves in the trial of the cause.
It is also insisted by appellee's counsel that if the paragraph under consideration is to be treated as a counterclaim, there is nothing to appeal from, as there was no finding or judgment against the appellant upon such counterclaim, nor any motion for such a finding or judgment, or for a modification of the judgment rendered.
The pleading under consideration alleges, in answer to the complaint and affidavit in replevin, "and as a complete bar to the said proceedings," that the defendant, J. Newton Dexter, has never had or claimed any interest in or title to the property in controversy, except for and on behalf of his codefendant, and that all things done by him in regard to said property were done on behalf of his said codefendant; that the plaintiff's title is based upon a sheriff's sale made on a certain execution in favor of Samuel Abbott against a certain corporation named the Illinois and Indiana Stone and Manufacturing and Improvement Company, on a judgment of $ 140.61, rendered in the Fountain Circuit Court, October 8, 1892; that an execution was issued on said judgment to Vermillion county, October 17, 1892; that on October 20, 1892, said execution was levied on a certain farm, consisting of 110 acres of land of the value of $ 10,000, and that after two offers of sale said execution was returned indorsed "no sale for the want of bidders;" that said levy was never released nor in any other manner disposed of, but that on September 17, 1893, said judgment plaintiff, ignoring said levy, caused a pretended alias execution to be issued to the sheriff of Fountain county against the said Illinois and Indiana Stone and Coal Manufacturing Company; that the amount for which said execution was issued was excessive as to costs; that the sheriff proceeded without serving said execution upon any one, seized the property in controversy and advertised a sale of it for November 17, 1893, giving barely ten days' notice, and fixing the time of sale between 10 o'clock A. M. and 4 o'clock P. M., and designated the place of sale as "the coal mine of the Shipman Manufacturing Company;" that said sheriff made a hurried sale of the property soon after 10 o'clock, and struck off said property in controversy to the plaintiff for $ 30; that the property so sold was worth $ 2,000, as the said sheriff and plaintiff knew; that plaintiff did not pay the purchase money till 1 o'clock P. M. of said day; that in the meantime the Shipman Mining and Manufacturing Company offered to pay the sheriff the full amount of said judgment and costs, which the sheriff accepted and received, except the sum of $ 30, which he refused to take unless the plaintiff would waive his claim, which the latter refused to do, but insisted on paying and completing his bid; that before the commencement of this action the defendant tendered said plaintiff $ 55 gold coin on account of any claim he had concerning said property and that said tender has been kept good in court; that the property in controversy formerly belonged to said execution defendant, but that in December, 1892, this company (appellant) bought the same for a good and sufficient consideration and has ever since owned the same; that defendant company, as part of the consideration, agreed to pay the debts of said execution defendant, but never became a party to said judgment in any manner whatever, and that said Pfeiffer has no other claim or title whatever.
The prayer of the pleading is that the pretended sale by the said sheriff be set aside and held for naught; that the plaintiff take nothing by this suit; that the defendant, The Shipman Coal, Mining and Manufacturing Company, be adjudged the owner of said property, and for all proper relief.
The affirmative reply admits that plaintiff claims title by virtue of the sheriff's sale, and avers that the purchase by the defendant company of said property was for no consideration except the assumption of the debts of the said execution defendant; that for reasons set forth the defendant company is identical with said execution defendant; that defendant company was careless about attending the sale; that plaintiff attended the sale and purchased the property in good faith, believing all the proceedings to be regular.
A counterclaim, under the code, is any matter arising out of or connected with, the cause of action, which might be the subject of an action in favor of the defendant, or tend to reduce the plaintiff's claim for damages. R. S. 1894, section 353 (R. S. 1881, section 350). ...
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Shipman Coal-Min. & Manuf'g Co. v. Pfeiffer
... ... M. Rabb, Judge.Action of replevin by Jacob Pfeiffer against the Shipman Coal-Mining & Manufacturing Company and another. From a judgment for plaintiff, defendants appeal ... ...