Woolson v. Pipher

• Decision Date: 21 February 1885
• Docket Number: 10,774
• Citation: 100 Ind. 306
• Parties: Woolson, Assignee, v. Pipher et al
• Court: Indiana Supreme Court

100 Ind. 306

Woolson, Assignee, v. Pipher et al

No. 10,774

Supreme Court of Indiana

February 21, 1885

From the Martin Circuit Court.

The judgment is affirmed, with costs.

T. M Clarke, for appellant.

OPINION

Howk J.

The appellant, Woolson, as assignee in the voluntary assignment of F. W. Tipton & Co., commenced this action in the court below against the appellee Pipher, as the sheriff of Martin county, and a large number of other persons, attaching creditors of the firm of F. W. Tipton & Co. The object of the action was to recover the possession of a stock of merchandise, lately before the property of F. W. Tipton &amp Co., which had been seized by and was in the possession of appellee Pipher, as such sheriff, at the suit of his co-appellees, attaching creditors of F. W. Tipton & Co. The cause was put at issue and tried by the court, and a finding was made for the appellees, the defendants below and, over appellant's motion for a new trial, the court adjudged that he take nothing by his suit, and that the appellees recover of him their costs.

Error is assigned here by the appellant which calls in question the decision of the circuit court in overruling his motion for a new trial. He has also assigned as error the overruling of his motion in arrest of judgment. But his motion in arrest only questioned the sufficiency of his own complaint, and, as the insufficiency of his complaint would afford him no ground for the reversal of the judgment, we need not consider this supposed error. Hansher v. Hanshew, 94 Ind. 208.

In appellant's motion for a new trial the only causes assigned therefor were, (1) that the finding of the court was not sustained by sufficient evidence, and (2) that such finding was contrary to law. The case is presented here, therefore, wholly upon the evidence. Did the appellant, the plaintiff below, show by sufficient evidence that he was entitled, as against the appellees, at the time he commenced this suit, to the possession of the goods and chattels described in his complaint? This is the question we are required to consider and decide in this court. The appellees' counsel have not favored us with any brief or argument in support of the decision and judgment of the trial court. Appellant's counsel, in his brief of this cause, says: "Our court decided that to render an assignment effective to pass property in this State, whether executed in this State or not, the provisions of section 2663, R. S. 1881, must in all things be complied with, and especially the provision that the indenture shall, within ten days after the execution thereof, be filed with the recorder of the county, 'where the goods are situated.' In this we think the court erred; section 2663 requires nothing of the kind. It does require that the indenture shall be filed with the recorder of the county 'in which the assignor resides.'"

It may possibly be that the trial court made the decision imputed to it by appellant's counsel; but the record of this cause by which alone this appeal must be determined, does not disclose any such decision. It is shown by the record that the trial court admitted all the evidence offered by either the appellant or the appellees; that upon the evidence the court found for the appellees, and that the court overruled the appellant's motion for a new trial, and rendered judgment upon its finding. The court's reasons for making these decisions are not...