68 Ind. 172 | Ind. | 1879
In this action, the appellant sued the appellees, to foreclose a certain chattel mortgage, and to collect a certain promissory note, secured by such mortgage.
In his complaint, the appellant alleged, in substance, that the appellees Matthews and Rich, on the 16th day of October, 1873, by their note of that date, promised to pay Kramer and Butch, one year after the date thereof, the sum of $337.50, with interest at six per
To this complaint the appellees Matthews and Rich jointly answered, to the effect that, before the commencement of this action, they had fully paid the note and mortgage sued on, on which answer the appellant joined issue by a reply in denial. The appellee James W. Anderson separately answered in three paragraphs ; and to the first and third paragraphs the appellant demurred upon the ground as to each of them, that it did not state sufficient facts to constitute a defence to his action. These demurrers were overruled by the court, and to these rulings the
In this court, the appellant has assigned, as errors, the following decisions of the circuit court:
1. In overruling his demurrers to the first and third paragraphs of the separate answer of the appellee James. W. Anderson; and,
2. In overruling his motion for a new trial.
We will first consider and decide the questions presented by the alleged error of the court, in overruling appellant’s demurrers to the first and third paragraphs of Anderson’s separate answer.
1. In the first paragraph of his separate answer, the appellee James W. Anderson alleged, in substance, that on the 12th day of May, 1875, the appellant and Patrick H. Dutch, mentioned in the mortgage sued on in this action, began in this court an action of replevin, for the recovery of the possession of all the personal property mentioned and described in appellant’s complaint in this action, and that the mortgage, m that action mentioned and described, is the same mortgage mentioned and described in the complaint in this action, and not other or different; that on said 12th day of May, 1875, all said property was in the possession of the appellee Anderson, as the absolute owner thereof; that the plaintiffs in said action of replevin claimed the possession of said property, in that action, by virtue of said chattel mortgage, and the appellee Anderson filed the complaint of said Kramer
In the third paragraph of his separate answer, the ap
We are clearly of the opinion that the court, erred in overruling the appellant’s demurrer to each of these paragraphs of answer; for the appellant’s cause of action, as stated in his complaint in this suit, -was not involved in the issues, and was not tried and determined, in the action of replevin mentioned in said paragraphs. The action of replevin was commenced and prosecuted to final judgment, by and in the names of the appellant in this suit, Baltzer Kramer and Patrick IT. Dutch, as plaintiffs, against the appellees Anderson and Matthews, and four other named persons, as the defendants therein. One of the appellees in this case, Franklin Rich, one of the makers of the note now in suit, was not a party, either as plaintiff or as defendant, to said action of replevin. It will be seen, therefore, that the parties to the two actions, both plaintiff and defendant, are widely different. The^same property was the subject of each of the two actions; but, in the action of replevin, Kramer and Dutch, the plaintiffs therein, alleged that they were then, to wit, May 12th, 1875, not the owners, but lawfully entitled to the possession merely, of said property, and they sought only, in that action, to recover such possession. The action of replevin is a possessory action ; and under such a complaint as the one in that action, and where, as in that case, the only issue for trial is the one made by an answer in general de
In the case now before us, the appellant, Kramer, was the only plaintiff, and, in so far as the property is concerned, he did not assert any claim whatever to its possession, but he alleged that he held a promissory note executed by the appellees Matthews and Rich,, the payment of which note was secured by a mortgage executed by said Matthews on said property, and duly recorded in the proper county, and that, after the execution and record of said mortgage, the appellee Anderson had become the purchaser of said property. It seems to us that none of the matters alleged by the appellant in this suit were or could have been litigated and determined, under the issues joined in said action of replevin. It is settled by the decisions of this court, that a paragraph of answer, setting up a former adjudication of the matters in controversy, must show either that those matters were actually determined in the former suit, or that they might have been litigated andl finally decided under the issues therein joined. The Columbus, etc., Railroad Co. v. Watson, 26 Ind. 50; Duncan v. Holcomb, 26 Ind. 378; Miller v. Mans, 28 Ind. 194; Crosby v. Jeroloman, 37 Ind. 264; Wilson v. Fatout, 42 Ind. 52; Davenport v. Barnett, 51 Ind. 329; and Richardson v. Jones 58 Ind. 240.
It would seem, therefore, that the facts alleged in the-first paragraph of the separate answer of the appellee Anderson, setting up the former adjudication in said action of replevin, in bar of this suit, were clearly insufficient, and that the appellant’s demurrer to said first paragraph, for the want of facts, ought to have been sustained». Nor can it be correctly said, we think, that there was any thing in the proceedings and judgment of the' court, in»
The chattel mortgage shows upon its face, that it was given to secure the payment of two promissory notes, each in the sum of $337.50, and also the payment and performance of 'the written contract of the appellee Matthews, to pay said Kramer and Dutch fifteen hundred dollars, in lumber. On the trial of the action of replevin, the jury found specially, in their answers to interrogatories, that there had been paid by said Matthews, in sawing, on the contract secured by said mortgage, the sum of $1,888.11, and that in addition there was paid the sum of $100.00, credited on note. There certainly is nothing in these special findings, or in the judgment thereon rendered, which could or ought to estop the appellant from commencing or maintaining this action to collect the amount due and unpaid on the note now in suit, and to enforce his mortgage lien on the chattels specified in the mortgage mentioned and described in his complaint herein. In our opinion,
On the trial of this case, the record fails to show that any evidence was introduced, which tended to prove that the note now in suit, or any part thereof except the credit of one hundred dollars, which the appellant admitted the note was entitled to, had ever been paid or satisfied.
As the conclusion we have reached, in regard to the insufficiency of the first and third paragraphs of the separate answer of the appellee James "W. Anderson, will uecessarily lead to the reversal of the judgment below and the formation of new issues, we need not now consider or decide any of the other questions arising under the alleged error of the court, in overruling the appellant’s motion for a new trial.
The judgment is reversed, at the appellees’ costs, and the cause is remanded with instructions to sustain the demurrers to the first and third paragraphs of Andei’son’s separate answer, and for further proceedings in accordance with this opinion.