143 Ind. 63 | Ind. | 1895
Appellant’s original complaint against appellee in this cause was filed June 6, 1888; afterwards an amended complaint was filed, which recites at length the pleadings, findings, and judgments in a former case wherein Center township first recovered a judgment against Marion county for $71,000.00, on account of a certain tax fund voted by the township and collected by the county, for the construction of the Indiana and Illinois Central Railway. Afterwards, by agreement between the township and the county, this judgment was set aside and an agreed judgment entered for $58,000.00 against the county and in favor of the township, and by agreement the following payments were made by the county to the township :
March 18, 1881, $13,373.55 of principal.
June 28, 1882, $2,089.85 of principal.
June 28, 1882, $2,910.15 of interest.
February 7, 1883, $2,910.15 of interest.
After the I. D. & S. R. W. Co., the successor of the original company by purchase and re-organization, had completed said line of railway it made a demand on the county for said donation money. The township was also claiming such donation, and certain tax-payers also made a demand in their own behalf for a pro rata return of amounts paid in by themselves as taxes. The township, finding it could not enforce a judgment it had against the county, brought a suit, making the board of commissioners of Marion county, Indiana, and the said I. D. & S. R. WV Co., defendants, and claiming the said fund, etc. The defendants all filed answers, and the I. D. & S. R. "WV Co. also filed its cross-complaint, claiming the fund and making as defendants
Center township made a motion to vacate judgment on ground of mutual mistake, whereby special findings were made to show that shops were constructed in Center township, whereas, in fact, they were constructed in Wayne township, which was overruled and judgment affirmed in the supreme court. Center Township v. Board, etc., 110 Ind. 579.
The amended complaint then alleges that on the 23d day of April, 1876, said Indianapolis, Decatur & Springfield Railway Company executed to George Walker and Richard L. Ashurst, as trustees, for certain bondholders, a mortgage whereby said Indianapolis, Decatur & Springfield Railway Company granted, bargained, sold, and transferred all of its property, real and personal, of every kind and description, together with all its rights, title, interest and claims and items of every kind whatsoever, as well in law as in equity; that said Indianapolis, Decatur & Springfield Railway Company having defaulted in payment of its interest, John D. Probst, the holder of certain of said bonds, instituted suit in the United States courts of Indiana and Illinois against said Walker, Ashurst and others, to foreclose said mortgage; and that on February 1, 1887, in said courts, a decree was entered foreclosing said mortgage, and ordering the sale.of all said property, rights, etc., and that said property was duly sold and purchased by John D. Probst, Henry B. Hammond, Simon Stern and Thomas B. Atkins, a purchasing committee appointed by the bondholders to buy in said railroad and organize a new company; and that said committee caused certain railroads to be organized for the purpose of operating said line of railway, viz.: “The Indianapolis, Quincy &
To this complaint the defendant first filed an answer of res acljuclicata and two paragraphs of answer of the six-year statute of limitation, and other paragraphs to the effect that plaintiff was not entitled to the fund because it failed to comply with conditions of donation, etc. Demurrers were filed to the paragraphs of answer, which were overruled, and carried hack by the court and sustained to the complaint.
The cause was then appealed to this court and reversed; this court holding that there were two causes of action created by the division of the fund between the county and the township, and that the company had a separate-cause of action against each, and that the cause of action against the township alleged in the complaint was expressly reserved and not settled in the former action against the county, and that the paragraphs of answer setting up the statute of limitations were defective in form. Indianapolis, etc., R. W. Co. v. Center Township, 130 Ind. 89.
When the cause was returned to the court below, the
First. That the court erred in overruling the demurrer to each paragraph of answer.
Second. That the court erred in each of the conclusions of law stated.
Third. That the court erred in overruling the motion for a new trial.
The motion for a new trial assigned as reasons therefor that the finding was not sustained by sufficient evidence, that it was contrary to the evidence, and was contrary to law.
The theory of the complaint is that the cause of action, shed upon was included by the I. D. & S. R. W. Co. in the mortgage by which it mortgaged its line of railway and other property, real and personal, to the trustees named; that a decree of foreclosure of the mortgage was • entered in the United States Circuit Courts of Indiana and Illinois, in a suit in which John D. Probst was plaintiff, and the I. D. & S. R. W. Co. and the trustees were defendants, and that the cause of action in suit was transferred by the sale and conveyance of the railroad and its property, made pursuant to said decree of foreclosure, to Probst and others, a purchasing committee; that for the purpose of operating the rail
There is no finding that appellant was the owner of the cause of action sued upon, or that the same had by-mortgage, foreclosure, sale and deed, been transferred to the appellant, as alleged in the complaint.
The appellant’s counsel earnestly insist that the court should have made a finding upon the evidence “that the right to the asset in controversy had, by mortgage, foreclosure, sale and deed thereunder, been transferred to appellant, as alleged in the complaint.”
To prove title by sale on execution, or order of sale, the purchaser must show a valid judgment, an execution or order of sale, and deed. Armstrong v. Jackson, 1 Blackf. 209; Carpenter v. Doe, 2 Ind. 464; La Plante v. Lee, 83 Ind. 155 ; Woolen v. Rockafeller, Exr., 81 Ind. 208, and authorities cited. This rule applies to personal, as well as real property. Yates v. St. John, 12 Wend. 74; Earl v. Camp, 16 Wend. 561; 2 Phillips Ev., top page 305. Appellant contends that this rule lias been changed as to claims like the one sued upon, "by sections 724, 725 and 726, R. S. 1881; sections 736, 737 and 738, R. S. 1894.
Section 724 (736): “Any debt or thing in action, legally or equitably assignable, may be levied upon, when given up by the defendant, and sold on execution, in the same manner as other personal property. ”
Section 726 (738): “In any action in which such assignment is declared upon or stated, it shall.not be necessary to plead or prove any judgment or execution by virtue of which the sale was made, nor to> prove the execution of the assignment, unless the same be denied under oath.”
These sections clearly recognize the rules concerning the proof required, as stated in this opinion, and expressly modify the same as to’ the kind of .property described in. the first section, when the same is levied upon and sold under the provisions thereof. These sections are not,, however, applicable to the facts of this case, as alleged in the complaint. No debt or tiring in action was given up by the I. D. & S. R. W. Co. to be levied upon and sold on execution, neither did the sheriff, or any other officer, assign and deliver the same to the purchaser. The complaint does not allege, nor does the evidence show, a sale coming within the letter or spirit of said sections. Bay v. Saulspaugh, 74 Ind. 397; Steele v. McCarty, 130 Ind. 547. It is also well settled, that when a suit is brought upon a chose in action of any kind, or with regard to personal property of any kind, the specific title alleged must be proven as laid, the same as if the action was brought for real estate. Smelser v. Wayne, etc., Turnp. Co., 82 Ind. 417; Reynolds v. Copeland, 71 Ind. 422 ; Wallace v. Reed, 70 Ind. 263 ; Morgan v. Smith, etc., Co., 73 Ind. 179; Hadley v. Wray, 76 Ind. 476 ; Ragsdale v. Mitchell, 97 Ind. 458.
The I. D. & S. R. W. Co. was made á defendant to*
Appellant urges that, as this answer of the I. D. & S. R. W. Co. was read in evidence, it, with the other evidence in the cause, established the transfer of the right of action, as alleged in the complaint. The answer of the I. D. & S. R. W. Co., although given in evidence, was not evidence against the appellee for any purpose. Boots v. Canine, 94 Ind. 408; 1 Rice Ev., section 226; 2 Wharton Ev., sections 1116, 1119 and 1199; Reese v. Reese, 41 Md. 554; Thomasson v. Tucker, Admr., 2 Blackf. 172. Appellee was not bound by any admission made by the I. D. & S. R. W. Co., nor could any such admission made by it be used to prove any fact against appellee. The title alleged cannot be shown by such evidence. Under the issues in this cause the burden was upon-the appellant to prove
Under the well settled principles heretofore stated, there was no evidence from which the court could have found that appellant was the owner of, and had the right to recover upon, the cause of action.
The motion for a new trial was properly overruled.
Appellant contends that the demurrer to the second, third, and fourth paragraphs of answer should have been sustained, for the reason that the cause of action stated in the complaint -is based on a judgment and is not an action for money had and received.
We are of the opinion that this is not an action on a judgment, but • is an action for money alleged to have been received by appellee from a fund belonging to appellant and wrongfully converted to its own use. It is true that the complaint contains copies of all the papers and entries in the action instituted by Center Township v. Board, etc., supra, in
The cause of action set forth in the complaint, therefore, is governed by the six years statute of limitations. This is not a continuation of the action by cross-corn-
Even if error was committed by the court in overruling the demurrer to the second, third and fourth paragraphs of answer, it was harmless for the reason that it is clearly shown by the record that the final judgment is correct upon the facts found, and that the same is not predicated on any finding in regard to the statute of limitations. McCrory v. Little, 136 Ind. 86 ; Walling v. Burgess, 122 Ind. 299 (7 L. R. A. 481, 484); Nixon v. Campbell, 106 Ind. 47; Miller v. Hardy, 131 Ind. 13; McComas v. Haas, 93 Ind. 276; State, ex rel., v. Vogel, 117 Ind. 188 (192); Sohn v. Cambern, 106 Ind. 302; Elliott App. Proced., sections 590, 637 and 638, and authorities cited.
. What has been said concerning the motion for a new trial and the demurrer to the answer of the statute of limitation, disposes of the exceptions to the conclusions
Judgment affirmed.
Hackney, J., took no part in this decision.