Tyres v. Kennedy
| Decision Date | 15 January 1891 |
| Docket Number | 14,684 |
| Citation | 26 N.E. 394,126 Ind. 523 |
| Parties | Tyres v. Kennedy et al |
| Court | Indiana Supreme Court |
From the Montgomery Circuit Court.
Judgment reversed, with costs.
J. E Humphries and M. D. White, for appellant.
B. T Ristine, T. H. Ristine, P. S. Kennedy and S. C. Kennedy, for appellees.
This is an action to recover the possession of personal property. The appellant filed an answer consisting of two paragraphs; the second paragraph was demurred to and the demurrer sustained to which ruling of the court the appellant saved an exception.
The cause was submitted to a jury for trial, a verdict returned for the appellees, and over a motion for a new trial judgment was rendered in accordance with the verdict.
The errors assigned call in question the rulings of the court in sustaining the demurrer to the second paragraph of answer, and in overruling the motion for a new trial.
The second paragraph of the answer alleged that the appellees claimed the right to the possession of said property as mortgagees by virtue of a mortgage executed by one Thomas Ward, and that after the execution of said mortgage the appellant claiming to be the owner of said property, and, as such owner, entitled to the possession thereof, brought an action of replevin against said Ward, who at the time was in possession of said property, and that such proceedings were had in said action that the appellant recovered judgment awarding to him the possession of said property. It is further alleged that the appellees were present during the trial of said cause and managed and controlled the same as the attorneys of the said Ward and on his behalf.
We are of the opinion that the court did not err in sustaining the demurrer to said answer for two reasons: 1. The same facts, if material, were provable under the general denial. 2. The facts pleaded did not constitute a defence to the action.
It does not appear that the appellees were served with notice to appear and defend the action as parties in interest, and their presence as attorneys for the defendant could not prejudice their rights as mortgagees. Whatever they did as counsel was in behalf of their client and in his name; they could take no step except as his representative. They could not in their own behalf except to any ruling of the court or prosecute an appeal. We think the appellees were not concluded by the judgment which was rendered.
There are several causes assigned for a new trial, the three first of which relate to the exclusion of certain evidence offered by the appellant on the trial; the fourth cause is that the evidence does not support the verdict; and the fifth that the court erred in giving certain instructions.
The last cause named is waived for the reason that counsel for the appellant do not refer to it in their brief, and the fourth need not be considered, because of the fact that the judgment must be reversed because of the rulings of the court in excluding certain evidence offered by the appellant on the trial. It is insisted by the appellant that the court erred in excluding the record of the proceedings and the papers in the said action between the appellant and Ward, appellees' mortgagor.
It is contended that this evidence was competent to rebut certain testimony given by one of the appellees' upon the trial; but when we come to examine the record we find that no such evidence was introduced by the appellees as is claimed by the appellants.
Conceding, for the purposes of argument, that the assessment list of the appellant for the year 1887 was competent, there was no error committed in excluding the paper offered, for the reason that there was no evidence before the court identifying it as the original paper, and no offer to identify it as such.
This leads to the only other question presented by the record.
The appellant offered to prove upon the trial that Ward had stated to different persons before he executed the mortgage to the appellees, that he had sold the property in controversy to the appellant.
This evidence was clearly competent, and ...
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