78 Ind. 378 | Ind. | 1881
Lead Opinion
Suit by the appellee against the appellants for the tortious conversion of property. Trial by jury; verdict ¡and judgment for the plaintiff for $5,000. The errors assigned ¡are: First, that the complaint does not state facts sufficient, •etc.; second, the overruling of the motion to have the complaint made more specific; third, the sustaining of a demurrer
The material averments of the complaint are: “ That William Gerard, Sr., departed this life intestate, on the — day of May, 1874, the owner of a large amount of personal property, viz., of the value of $15,000, consisting of money received by the decedent, or by the defendants for his use,
Eor lands sold and conveyed to JohnW. Cofield, and interest on same,.............$8,000 00
Cash received by decedent, or by defendants for his use, for produce on the ‘Home Farm,’ in 1864, 2,500 00
Cash legacy from estate of Eeece A. Gerard, received by defendants for use of decedent, . . . 1,000 00
Cash received by the decedent, or by the defendants for his use, for cattle, horses, mules, sheep, hogs sold,................ 1,000 00”
.(and here follows a list of household and kitchen furniture, farming utensils and other property with values attached, to the total amount, including the foregoing items, of $16,615), “ all of which property the defendants have taken and unlawfully appropriated and converted the same to their own use .and benefit, and refuse to deliver the same to this plaintiff, though often requested so to do,- but have wrongfully converted all of the same to their own use, since the death of the decedent, as executors of their own wrong, to the damage of the plaintiff in the sum of $20,000. Wherefore,” etc.
It is insisted, that, in order to render one an executor de son tort, the act complained of “must be not only unlawful and an act of ownership, but it must be done before probate or administration granted, for otherwise the act would be a trespass or other injury to the rightful executor.” This argument, and the authorities cited in support of it, may show that it
The substance of the complaint is, that the intestate died the owner of certain moneys and property which, since the death of the intestate, the defendants had wrongfully converted to their own use. This makes a good complaint, whether the conversion occui’red before or after the granting of letters. It would be good on demurrer, and is certainly sufficient after verdict when there has been no demurrer.
The motion to have the complaint made more specific was directed to the alternative statements concerning the items of money charged to have been received by “the decedent, or by defendants for his use,” but it is evident, from what has already been said, that these expressions are quite immaterial, . and, if omitted entirely, the complaint would not be impaired. Their presence produces no uncertainty in reference to the gist of the averment, which is that the decedent died the owner of the several sums named, derived from the particular sources stated. The appellants were definitely informed of what moneys they were charged with, and can not complain that the complaint-is uncertain in a collateral and unimportant matter, about which, it is evident, they must have had better knowledge than the pleader. See The Trayser Piano Co. v. Kirschner, 73 Ind. 183. The complaint means that Gerard, Sr., died possessed of the moneys named, either in his own possession, or held by the defendants for him. If the alleged conversion occurred before the ancestor’s death, then the complaint, in this material respect, is not true, and the action fails.
In respect to the dates when, and the persons from whom, the moneys received by the defendants came, the court ought perhaps to have ordered the complaint made more specific.
The amended second paragraph of answer, to which the demurrer was sustained, was to the following effect: That the said William Gerard, Sr., departed this life intestate, on the 6th day of May, 1874, and that the cause of action in the com
The matters stricken out of the third paragraph of the answer, as well indeed as what remains of that plea, were provable undpr the general denial, if competent under any form of averment, and the action of the court in that.respect was, therefore, harmless. From the nature of the complaint, which charges the appellants with the wrongful conversion of property, there can not well be a confession and avoidance, and any evidence which would tend to justify their appropriation of the money or property to their own uses must be admissible under the general issue.
After the court had sustained a demurrer to the amended second paragraph of answer, the plaintiff filed a reply of several paragraphs, the first of which was addressed to the second paragraph of answer. After the jury had been impanelled, the court permitted the plaintiff to withdraw this paragraph of the reply, and proceeded with the trial without re-swearing the jury. The appellant complains of this. But there was no error in it. The jury had been sworn to try the issues, and, though one of the issues was afterward withdrawn, the oath nevertheless continued applicable to the issues that remained.
It is claimed that the court erred in overruling the demur
The second paragraph, which purports to be a complete reply to this answer, is to the effect that the releases were executed without any consideration. The point is made, and must be sustained, that this reply is defective because it does-not respond to the entire answer to which it is addressed. The averment that the intestate, in his lifetime, had assigned, transferred and delivered to the defendants all his personal estate, itself constitutes a complete defence, which the reply fails entirely to meet.
The same objection is made to some of the other paragraphs, and perhaps truly, but as the judgment must be reversed for the error already indicated, and as the pleadings will doubtless be amended' before another trial is had, we deem it unnecessary to proceed further.
The judgment is reversed, with costs, and the cause remanded with instructions to sustain the demurrer to the second paragraph of the reply, and to grant leave to each party to amend.
Dissenting Opinion
Dissenting Opinion.
I concur in the conclusion stated in the-opinion of the majority, but think the judgment should have been reversed upon the ruling denying appellants’ motion to make the complaint more specific. The specific charges against the appellants ax-e thus stated: “The defendants have converted personal property of the intestate to the value of
Our code means that a bill of particulars shall afford certain and definite information. "Whether the particulars of the claim of a plaintiff be stated in the body of the complaint or in an exhibit is immaterial; in either case the defendant has. a right to have it state definitely and certainly the particulars of the claim. Starkweather v. Kittle, 17 Wend. 20; Harding v. Griffin, 7 Blackf. 462. The case of Goodwin v. Walls, 52 Ind. 268, fully sustains the position here taken.. As well have no specific statement at all as one which does not exhibit, with reasonable certainty, the particulars of the; plaintiff’s claim.