8 Ind. App. 278 | Ind. Ct. App. | 1893
The appellee was the plaintiff and the appellants the defendants in the court below. The action was to recover the possession of a certain horse. There was a trial by jury, and the appellee had judgment in her favor against all the appellants. The appellants have severally assigned errors in this court. The first error discussed by counsel is that the court erred in sustaining a demurrer to the second paragraph of the separate answer of Noah Fruits. In this paragraph, said appellant pleaded, that he was the duly qualified and act
The next assignment of error discussed by counsel is the overruling of the motion for a new trial. On the trial the appellants, after sufficiently identifying the same, offered in evidence a judgment rendered by the appellant, John L. Hankins, as a justice of peace of Ripley township, in the case of Jacob Elmore against James Elmore, and a writ of execution issued thereon by the appellant, John L. Hankins, as such justice of the peace, which was levied upon the property in controversy by the appellant, Noah Fruits, as constable of said township. This evidence was excluded over the objection of the appellants. Replevin is a mere possessory action. Title to the property is usually but an incident in determining the right to possession. It may, or may not, be a controlling circumstance. One person may have the title and another have the right to the possession. Usually title is a strong circumstance tending to show the right of possession. In the case in hearing, it was proper, under the issues for the appellants, to show that the horse was the property of James Elmore, and that the posses
It has often been decided that where there is a mere finding for the plaintiff, without any assessment of damages, no judgment can properly follow. Cincinnati, etc., R R. Co. v. Washburn, 25 Ind. 259; Trout v. West, 29 Ind. 51; Mitchell v. Geisendorff, 44 Ind. 358; Nicholson v. Caress, 76 Ind. 24; Bunnell v. Bunnell, 93 Ind. 595.
If a judgment is a nullity, the party against whom it is rendered may assail it whenever and wherever it confronts him. But is the judgment offered in this case a nullity? In the cases above cited, there was a direct attack upon the judgments, here the attack is a collateral one. We do not consider the judgment offered in evidence as being absolutely void. The justice had jurisdiction of the subject-matter, and of the person of the judgment defendant. The judgment rendered by him was erroneous but not void. It was sufficient to support
The judgment here being merely voidable, the constable had the right to levy the same on the property of the judgment defendant. Of course if the constable levied it upon the property of appellee, neither the judgment nor the writ afforded him any protection. The right to the possession was the issue to be determined. There was some evidence which tended to show that James Elmore was the owner of the horse. This being true, the judgment and writ were proper evidence to go to the jury to show the right of possession under said levy.
Again, there is no evidence in the case which tends to show that the appellant, John L. Hankins, ever had the actual or constructive possession of the property. The only connection he had with the case was to issue an execution against the property of James Elmore. He gave no command to levy it upon the particular property in controversy. Replevin can not be maintained unless the evidence shows the actual or constructive possession of the property in the defendant at the time when the suit was instituted. Standard Oil Co. v. Bretz, 98 Ind. 231; Louthain v. Fitzer, 78 Ind. 449; Krug v. Herod, 69 Ind. 78.
Judgment reversed at the costs of appellee, with instructions to sustain the motion for a new trial as to all the appellants.