82 Ind. 95 | Ind. | 1882
This is an action of replevin brought by the appellee against the appellants, to recover the possession of forty-five bushels of wheat, one sorrel mare, and one two-year-old heifer, alleged to be of the value of $175, and to be unlawfully and wrongfully detained from the ajipellee by the appellants. The complaint, affidayit and bond arc in the usual and proper form.
The appellants filed an affidavit, alleging the non-residence of the appellee, and moved the court to require him to give a bond for costs. The court overruled the motion, on the ground that the costs were sufficiently secured by the replevin bond filed.
The appellants answered by a general denial. They also filed a special answer, but as the matter specially answered was provable under the general denial, the special defence will not be particularly noticed. Trial by the court, and finding for the appellee. The appellants moved for a new trial; the motion was overruled, and judgment for the appellee.
The appellants assign as errors the rulings of the court upon the motion for a bond for costs, and upon the motion for a new trial.
It is stated in the record that an affidavit was filed, stating the non-residence of the appellee, and that a motion for a bond for costs was made, but neither the affidavit nor the motion is in the record by bill of exceptions or otherwise. The question is not, therefore, presented to this court for decision.
The evidence given upon the trial is'properly in the record, and it tends to prove that the property described in the complaint, at and prior to the commencement of the suit, belonged to the appellee. It was proven that in the spring of 1880, the appellee went to the State of Kansas, leaving the property in dispute with his parents, Amos and Sallie Hadley, in Hendricks county, Indiana. It was agreed by the parties, that on the 25th day of August, 1880, the wheat, mare and heifer in controversy were in the’ actual possession of Amos and Sallie Hadley, in Hendricks county, Indiana; that on that day
“Jesse Hadley and John Atkinson v. Amos Hadley. In the
Hendricks Circuit Court.
“We undertake that the following property” (here the property levied upon, including that in dispute, is described), levied upon as the property of Amos Hadley, by virtue of an execution issued in the above entitled cause, by James M. Emmons, sheriff of Hendricks county, Indiana, shall be delivered to said sheriff, at the residence of Amos Hadley, in Guilford township, Hendricks county, on the- day of -, 18 — , or at any time previous to said date, upon demand being made at any time between the hours of ten o’clock A. ar. and four o’clock p. M., when said officer maybe ready to receive the same, in as good condition as the same is*98 at this date, to be sold by said sheriff, by virtue of said execution ; and further, that said--may sell said property at private sale, and when so sold, said--shall pay the cash value thereof to said sheriff as aforesaid; and this undertaking is hereby made payable to the execution plaintiffs in this action. Amos Hadley. [Seal.]
“ Sallie Hadley. [Seal.]
“Approved by me this 25th day of August, 1880.
“ James M. Emmons, Sheriff.”
The appellants insist that the foregoing facts, which embrace the substance of the evidence, do not sustain the finding and judgment of the court; that the action of replevin can not be sustained against a sheriff not in the actual possession of the property sought to be recovered. If in this the appellants are right, the judgment should be reversed, for it is agreed that they were not, at the time of the commencement of the suit, in the actual possession of the property, but that the property was in the actual possession of Amos and Sallie Hadley.
The code provides that “When any personal goods are wrongfully taken or unlawfully detained from the owner or person claiming the possession thereof, or when taken on execution or attachment, are claimed by any other person than the defendant, the owner or claimant may bring an action for the possession thereof.” 2 R. S. 1876, p. 88, sec. 128.
The goods in this case were claimed by the appellee. The levy made by the sheriff, though the goods were not removed by him, was a taking of them on execution within the meaning of the law. The goods were present and within the control of the officer at the time the levy was made. The sheriff did not remove the goods, did not take or have the manual, possession of them, but upon the execution of a bond by the judgment debtor and his wife, by which they agreed to re-deliver the goods to him upon demand, in as good condition as they then were, he permitted the obligors to retain possession of them. Through this arrangement, though the bond was
Per Curiam. — It is ordered that, upon the foregoing opinion, the judgment below be affirmed, at the costs of the appellants.