89 Ind. 428 | Ind. | 1883
Appellant sued appellees Leander Locke and Simeon Locke on a bill of exchange executed in the-State of Alabama by Joseph H. Locke, Sr., and Joseph Locke, Jr., as partners, under the firm name of J. H. Locke & Son, alleging that Joseph H. Locke, Sr., had died in Vigo county, Indiana, the owner of a large amount of personal property; that after the death of said Joseph, Sr., appellees unlawfully, and without taking out letters of administration, intermeddled with, took possession and disposed of all said personal property, and converted the proceeds thereof to their own use; and that afterwards James H. Kleiser was appointed administrator of said estate, and that said bill of exchange had been filed by the plaintiff as a claim against said estate; that the defendants had become and were chargeable as administrators deson tort; that plaintiff, as a creditor of said estate, has become and is damaged by said intermeddling and conversion in the sum of $400, and praying that the defendants be required and compelled to account to said administrator for the value of all of said property that they may have sold, and appropriated the proceeds to their own use.
To this complaint the defendants answered, first, by admitting the bill of exchange, and averring that at the time of decedent’s' death he and said Joseph H. Locke, Jr., were still co-partners, as when the bill was drawn, and decedent left his partner in business, and that the firm was solvent, and the surviving partner had sufficient partnership assets to pay all its liabilities, including the bill of exchange; that decedent left a widow, who was entitled to her share of said estate, these defendants and two other children as his heirs; that he was individually liable for a large amount of money; that his widow took and kept possession of a large portion of his estate; that these defendants took possession of his stock of goods and business, to prevent it being wasted; that the same did not exceed $-in value, and that they have paid all of said debts, amounting to more than the value of the assets taken by them, etc.
There was a demurrer overruled to this paragraph of answer, and a reply in denial filed. There was a trial by the court, and, at the request of defendants, the court made a special finding, and stated its conclusions of law, in favor of the defendants. A motion for a new trial was overruled, and judgment rendered for the defendants. The errors assigned are:
1st. Overruling the demurrer to the first paragraph of the answer.
2d. Overruling the demurrer to the third paragraph of the answer.
3d. Overruling the motion for a new trial.
The demurrers to both paragraphs of the answer may be considered together.
The first objection made to these paragraphs of answer is that they do not answer the whole complaint; that they only admit the taking possession of the stock of goods. We think they are more comprehensive than thus construed; they admit the taking possession of the stock of goods and the business of the decedent — this includes all the property he
The next objection to these paragraphs of answer is that they are pleaded in bar, when they can only be considered in-mitigation ; that even if the defendants had paid the individual debts, amounting to more than the value of the property taken by them, they would still be liable as intermeddlersfor nominal damages. This might be true if the suit had been brought in the name of the administrator, who was entitled to the possession of the property; but even then a judgment will not be reversed where only nominal damages are involved. Though in this case, the action being in the name of a creditor, who was not entitled to the possession of the property, he could not maintain an action for nominal damages; he-could only recover for substantial damages. The 15th section of the act for the settlement of decedents’ estates, 2 R. S. 1876, p. 495, under which this suit was commenced, provides-that a creditor can only recover to the extent of the damages occasioned by the intermeddling. Appellant admits that theappellees are entitled to a credit for what they have paid upon the-individual indebtedness of decedent. We think the paragraphs are sufficient in bar to answer plaintiff’s complaint. There was no error in overruling the demurrers to them.
Under the third error assigned, the overruling of the motion for a new trial, it is insisted that the evidence does not sustain the finding of the court.
We can not state the substance of the evidence better than to-
Upon the foregoing facts the court finds the following conclusions of law:
*433 “ 1st. That the individual property of decedent was first liable for his individual debts.
“ 2d. That as the defendants had applied all the individual property of decedent to the payment of all his individual debts, with the consent of his widow and heirs, before the commencement of this suit, leaving no surplus, they are not chargeable in this action as administrators of their own wrong, and are not liable to account to the administrator of dece-dent’s estate since appointed for the property so applied. The court, therefore, finds for the defendants.”
We have carefully examined the evidence, and, although in some respects conflicting, we think it fully sustains the special findings of the court, and they sustain the general finding. There is no error in overruling the motion for a new trial.
This case having been tried since the Revised Statutes of 1881 went into force, a question might be raised as to whether it could be prosecuted in the name of a creditor while there was an administrator of the estate; but this question is not presented or discussed by counsel.
We find no available error in the record. The judgment ought to be affirmed.
Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment of the court below be and it is in all things affirmed, with costs.