Wilson v. Clark
| Decision Date | 18 April 1891 |
| Docket Number | 70 |
| Citation | 27 N.E. 310,1 Ind.App. 182 |
| Parties | WILSON v. CLARK ET AL |
| Court | Indiana Appellate Court |
From the Marshall Circuit Court.
Affirmed, with costs.
A. C Capron, for appellant.
J. D McLaren and E. C. Martindale, for appellees.
--This was an action of replevin. The answer was a general denial. Trial by the court; finding for the appellee. Motion for a new trial overruled and excepted to.
The third assignment of error is, that the court erred in overruling appellant's motion for a new trial.
The first, second and fourth assignments of error present no question that is not raised by the motion for a new trial. The causes assigned for a new trial are:
First. That the finding of the court is not sustained by sufficient evidence.
Second. That the finding of the court is contrary to the evidence.
Third. That the amount of damages found against defendant is excessive.
Fourth. Error of law occurring upon the trial, and excepted to by the defendant at the time, is this, to wit: The court erred in allowing the plaintiffs' attorney to ask Nathan F. Clark, a witness in his own behalf, the following question: "State how much plaintiffs were damaged per day by the seizure of the goods taken under the attachment by the defendant as sheriff; to which the witness answered: "We were damaged $ 25 per day;" and in allowing the following question to be asked Ozias Duddleson, a witness on behalf of the plaintiffs, and each of the plaintiffs' witnesses on his own behalf, to wit: "State if you had in your mind a fraudulent intention to cheat, hinder and delay the creditors of Ozias Duddleson when you were making the sale and purchase of the stock of goods levied on by the defendant as sheriff," to which all three witnesses answered: "No, we did not."
Before proceeding to the consideration of the motion for a new trial it is proper to say that on the 7th day of June, 1888, the South Bend Iron Works commenced an action in the Marshall Circuit Court against Ozias Duddleson on an account, and also proceedings in attachment upon the ground, as alleged in the affidavit, "that said Duddleson had sold and conveyed his property, subject to execution, with the fraudulent intent to cheat, hinder and delay his creditors." A proper bond was filed, and a writ of attachment was issued and placed in the hands of the appellant, who was sheriff of Marshall county, Indiana. The appellant executed the writ of attachment on the 14th day of June, 1888, and seized and took into his possession a stock of merchandise, consisting of hardware, farming implements, and other personal property. The appellees, claiming to be the owners of the property attached by the appellant, as such sheriff, commenced this action to recover said property. The claim of the appellant was that the sale of said property by said Duddleson to the appellees was fraudulent. The appellant claims, with much earnestness, that this case should be reversed under the first cause for a new trial; that the finding of the court is not sustained by sufficient evidence, in fact, that there is no evidence to sustain the finding. The following is a fair and accurate statement of the facts, as shown by the evidence: Ozias Duddleson was, a few days before the 2d of June, 1888, and for some time prior thereto, engaged in the hardware and implement business, in Marmont, Marshall county, Indiana, and was in embarrassed circumstances financially. A few days before the 2d day of June, 1888, the sheriff of Marshall county, Indiana, levied an execution, in his hands, on his stock of merchandise consisting of hardware, farming implements, and other goods, and closed his store on the 2d day of June, 1888; while the store was still closed and held by the sheriff, the appellees and Duddleson, the appellee Dillon being Duddleson's brother-in-law, went to Plymouth, the county seat of Marshall county, Indiana, and went to the office of a law firm holding some of the liabilities of said Duddleson, and while at this law office entered into a written agreement by which Duddleson sold to appellees his stock of merchandise, and all book accounts, subject to a certain chattel mortgage, therein mentioned, to Hibbard Spencer, and Bartlett, for $ 431.99, due in 30 and 45 days, on said stock, and his book accounts, subject to a note for $ 170.19, dated May the 18th, 1888, due in thirty days, payable to A. F. Seebarge; also, one note to Levi Lauer, for $ 100, and one note for $ 11, executed to Hoag & Wade, which three last notes were in the hands of said law firm, to secure which said firm held certain collaterals which were to be delivered to the appellees on full payment of said notes. There is nothing in the agreement showing what consideration the appellees were to pay Duddleson; but on the 4th day of June, 1888, Duddleson and wife conveyed by a warranty deed the lot upon which was situate the store building, in...
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