165 Ind. 7 | Ind. | 1905
Appellee, on October 3, 1903, commenced this action in the court below, against one Craft, to recover possession of certain personal property described in the complaint. Said Craft entered an appearance to said action, and filed a pleading which reads as follows: “Said Edward O. Craft, defendant, now comes and waives the issuing and service of process herein^ and also waives the issuing and service of a writ of replevin, and, for answer to said complaint, says, that he has possession of all the property described in said complaint and that he obtained and has held possession thereof under the following circumstances : that on- or about the-—• day of-, 1902, there was commenced in this court an action by Seiberling & Co., which defendant is informed is a corporation, against Columbus Cole, and that a writ of attachment was therein issued against the property of said Cole, and placed in the hands of this defendant, who was at the time, and still is, sheriff of said Laporte county, and that when, by his deputy, James McGfraw, he was about to levy said writ of attachment, some arrangement, the exact nature of which defendant is not aware of, was made by said Seiberling & Co., through its attorney, by which said property described in the complaint was placed in the hands of said James Mc-Graw, and that said attachment suit was dismissed and that McGraw turned said property over to this defendant, and that soon thereafter the same was claimed and demanded by said plaintiff William E. Porter, and that the same was demanded and is also claimed by said Seiberling & Co.; that this defendant makes no claim of title to said property, and only desires that it may be turned over to the party lawfully entitled thereto. Wherefore, said defendant asks that he may be allowed to turn said property into court, for the use of whoever may be legally entitled thereto, and for that purpose he now delivers the same to the clerk of this court, and asks that said Seiberling & Co. may be
Appellant, a corporation, appeared and filed a written motion asking that the prayer of said Craft be granted, and that- said appellant be made a party defendant to said action. Thereafter such proceedings were had that said Craft was ordered to deliver said money and notes in controversy to the clerk of said court, which he then and there did, and was by order of court released and discharged from further liability, and appellant was by order of court made a defendant in said cause. Appellant did not file any answer or other pleading claiming any right or title to said personal property. A trial of said cause resulted in a finding in favor of appellee, and, over a motion for a new trial, a judgment that the clerk of said court deliver to him said promissory notes and money.
The errors assigned are (1) that the complaint does not state facts sufficient to constitute a cause of action; (2) that the court erred in overruling appellant’s motion for a new trial.
The only causes for a new trial properly presented for
Under this evidence we can not say that the finding was not sustained by sufficient evidence, or that the same was contrary to law, and can not, therefore, disturb the finding and judgment of the court. Said evidence authorized the court to find that said property was sold by appellee, the mortgagee, to pay the indebtedness secured by the mortgage; that Antrim was the special agent of appellee to receive and turn over to him, as his property, the proceeds of said sale. The fact that appellee and Cole attempted to create the impression that the sale was not a forced one, in order thereby to sell the property for a better price, can not make the sale other than what it really was, a sale to pay the indebtedness secured by said property. The agreement of Cole and Antrim that the sheriff should hold the promissory notes and money in controversy until it was decided whether they belonged to appellee or appellant in no way deprived appellee of his right thereto or gave appellee any interest or right therein. It is true, there was a conflict in the evidence in regard to the agreement made on the day of the sale, under which the property in controversy was delivered
Even if this case falls within the provisions of section eight of the act of 1903 (Acts 1903, p. 338), as insisted by appellant—a question we do not decide—we could not, under the rule declared in Parkison v. Thompson (1905), 164 Ind. 609, disturb the finding of the trial court.
The case of Maier v. Freeman (1896), 112 Cal. 8, 44 Pac. 357, 53 Am. St. 151, cited by appellant, has no application to the facts of this case.
Judgment affirmed.