Wright v. Shelt
| Decision Date | 02 November 1897 |
| Docket Number | 2,295 |
| Citation | 48 N.E. 26,19 Ind.App. 1 |
| Parties | WRIGHT v. SHELT |
| Court | Indiana Appellate Court |
Rehearing denied January 5, 1898.
From the Elkhart Circuit Court.
Affirmed.
John M Van Fleet and Vernon W. Van Fleet, for appellant.
R. M Johnson and J. L. Harman, for appellee.
This appeal is taken from a judgment awarding the possession of certain personal property to appellee. The only question discussed by counsel for appellant is the refusal of the court to give an instruction requested by appellant.
Counsel for appellee insist that the evidence is not in the record for the reason that it does not appear that the bill of exceptions containing the evidence was filed in the clerk's office.
After setting out a bill of exceptions containing the instruction refused, the record recites that "said defendant also files his bill of exceptions containing the evidence as follows." Following this is a transcript of the evidence containing all the evidence given in the cause, with the certificate of the shorthand reporter and the signature of the judge. In the final certificate the clerk certifies "the above and foregoing to be a full, true, and complete transcript of the papers and entries in said cause as stated in the precipe, and also transcript of evidence as the same appear of record at my office on this date."
It appears that sixty days were given in which to file a bill of exceptions, and that a transcript was made out and certified by the clerk within the sixty days, and that this transcript contains a bill setting out the evidence. Although the certificate of the clerk may not be in the usual form, yet we think it affirmatively appears from the record that the bill of exceptions containing the evidence was filed.
The agreed statement of facts in this case does not make it an agreed case under the statute, although the agreed facts are verified as under an agreed case. The agreed statement of facts in this case is mere evidence which must be brought into the record by a bill of exceptions. Citizens Ins. Co. v. Harris, 108 Ind. 392, 9 N.E. 299.
The agreed facts show in substance, that on the 12th day of August, 1895, the appellant was a duly qualified constable of Washington township, in Elkhart county; that on the 13th day of August he levied upon and took possession of the cow in dispute as the property of Amandus Shelt, husband of appellee; that after such levy the constable doubted whether or not appellee was the owner of or had some claim to said property, and on said day he duly gave notice in writing to appellee that by virtue of an execution delivered to him by Darwin H. Johnson, a justice of the peace of Washington township, he had levied on "one brindle heifer supposed to be four years old" taken as the property of Amandus Shelt to satisfy a judgment in favor of William A. Kantz and Charles E. Adams and that if she had any claim on said property she should appear before said Johnson within twenty days and make good such claim; that at the time of giving said notice appellee was within and a resident of said Washington township, and has so remained ever since; that appellee did not institute proceedings to try the right of property, or claim the possession of said cow under the act known as section 1579, Burns' R. S. 1894, but that on the 15th of August, 1895, she brought this proceeding in replevin before said Owen A. Reed, a justice of peace in said township; that this is the only proceeding brought by her; that she claims that she is the absolute owner of said cow.
This statement of facts was read in evidence and raises a question upon the assignment in the motion for a new trial that the verdict of the jury is contrary to law. The instruction as requested by appellant and refused is as follows: "If you find from the evidence that the defendant on the 12th day of August, 1895, was then and ever since has been a constable of Washington township, Elkhart county, State of Indiana, and that on the 13th day of August, 1895, he, by virtue of an execution issued upon a judgment duly given by Darwin H. Johnson, a justice of the peace of said township, levied on and took into his possession the cow in dispute in this action as the property of Amandus Shelt, and that, after levying on and seizing said cow by virtue of said execution said constable doubted whether or not the plaintiff herein was the owner of or had some claim to said property, and that said constable on the 13th day of August, 1895, in said township gave notice in writing to the plaintiff herein that he had seized said property, describing the same, and stating by virtue of what process he had seized it, and requiring the plaintiff herein, if she had any claim or right thereto to assert the same by law within twenty days; and if you further find from the evidence that the plaintiff herein at the time of giving said notice was within and a resident of said Washington township and has so remained ever since, and if you further find from the evidence that the plaintiff herein brought this action of replevin after said notice was given, then the court instructs you that this action of replevin cannot be maintained, and you should return a verdict for defendant."
Sections 1613 and 1614, Burns' R. S. 1894, read as follows "When any officer has seized any personal property by virtue of any execution or writ of attachment, and doubts whether some person, other than the execution or attachment defendant, is not the owner of or has some claim to such property, he may give notice, in writing, to all such persons that he has seized such property, describing the same, and stating by virtue of what process he has so seized it, and requiring such persons, if they have any claim or right thereto, to assert the same, by law, within twenty...
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