77 Ind. 88 | Ind. | 1881
In her complaint in this action, the appellant, the plaintiff below, alleged in substance, that, on or about the 7th day of December, 1877, the appellees, without leave and wrongfully, took, of and from the appellant, and had not returned, the following property, to wit, one two-horse wagon, of the value of eighty dollars, by reason of which, the appellant said, she was damaged in the sum of one hundred dollars, for which and for other proper relief she demanded judgment.
The cause was put at issue and tried by the court, and a finding was made for the appellees, the defendants below, and over the appellant’s motion for a new trial, and her exception saved, judgment was rendered against her for the appellees’ costs.
The only error assigned by the appellant is the decision of the circuit court in overruling her motion for a new trial.
As necessary to a proper understanding of the questions presented for the decision of this court, we will first give a
After the judgment in the replevin suit, in October, 1877, the said William D. Dawson agreed with his mother, the appellant, that she might have the said wagon if she would
With this general statement of the facts of this case, as shown by the record, we proceed now to the consideration of the points made in argument by the appellant’s counsel. Counsel say: “First, we insist that the second assumed levy, made by constable Smith, on the execution issued June 21st, 1877, was no levy.” On June 23d, 1877, the constable endorsed on the execution that he had levied on the wagon, but he did not take it into his possession. It may be conceded that this was an invalid levy. It appeared, however, that afterwards, and before the sale of the wagon, the constable perfected his levy by an actual seizure of the property, as he had the right to do. By such seizure of the wagon, the constable’s imperfect levy thereon was rendered legal and valid, and the first objection of appellant’s counsel thereto was obviated.
But counsel further say: “We insist that the constable, Smith, could not, as he did in this case, return the execution issued December 22d, 1876, after he had been sued in replevin, and return that fact and take out another execution before that suit was determined.” Upon this point, the appellant’s counsel have cited the case of Stewart v. Nunemaker, 2 Ind. 47, and it must be conceded that it would fully sustain their position, if it were applicable to the case now before us. As between the execution defendant and the plaintiff therein, or the constable, it may be true perhaps, that the action of the constable in returning the first execution after the property levied on had been replevied, and in taking out another execution before the replevin
But, in the replevin suit for the same property, between the same parties, the court below adjudged, as we have seen,, that the appellant was not the owner,-nor entitled to the possession, of the property, and that she must return the same to the appellees ; and this judgment remained in full force, and had not been appealed from, annulled or set aside. It is clear, therefore, that the appellees were entitled to the; possession of the property in controversy, as against the appellant. It is claimed, however, by the appellant’s counsel, a& we understand their argument, that the appellees’ only remedy was to sue out an execution on the judgment, in the replevin suit, for the return of the property, and that, if they could not thus obtain the possession of the property, they must then resort to a suit on the replevin bond. Doubtless,, these statutory remedies were open to the appellees, if they had seen fit, or had been compelled, to resort to them. But after the judgment, in the replevin suit, had been decided, in their favor, the appellees found and took possession of the property, which, under said judgment, they were clearly entitled to, and the appellant was ordered to return to them ; and they then proceeded to, and did, sell said property under said second execution, to the appellee Sparks.
.After such sale, the appellant commenced this suit against, the appellees to recover damages for the alleged wrongful taking and conversion of the property in controversy. Up
The judgment is affirmed, at the appellant’s costs.