98 Ind. 445 | Ind. | 1884
The appellants brought this action upon a bond of replevin executed by the appellees.
The complaint alleged, in substance, that one Samuel B. Edwards recovered a judgment against Benjamin F. Henry et al., in the Decatur Circuit Court, for $662.35; that the appellant Andrew J. Smith, as sheriff of said county, with an execution issued upon said judgment, on the 29th day of September, 1879,^16vied upon a stock of goods belonging to said Henry; that while said Smith held possession of said goods as'such sheriff, John D. Mosby and Andrew J. Hobson, two of the'appellees, on the 3d'day of October, 1879, instituted an action of replevin in the Decatur Circuit Court against said Smith for said goods, alleging in their complaint that they were the owners and entitled to the possession, fixing the yalue of said goods in their affidavit at $900, and then obtained possession of the same by virtue of a bond of replevin executed by them and their co-appellees as their sureties ; that an answer of denial was filed, an issue was formed, and, upon the trial, a verdict was returned that the defendant was the owner of the goods, was entitled to the possession of them and that they were worth $900; upon which, it appearing that the plaintiffs had possession, the court rendered an alternative judgment, awarding the defendant the possession of the goods, and in the event that they should not be returned, a judgment for their value; that the appellees- have failed and neglected to return the goods, but have converted them to their own use. A copy of the bond accompanied the complaint.
A demurrer was overruled to this answer, and this ruling presents the controlling question in the ease.
This answer admits the rendition of the judgment in the action of replevin as averred, and seeks to show that the matters involved in the issues were notin fact adjudicated. This can not, as we think, be done!' The judgment as between these parties is conclusive, not only as to the ownership of the property, but as to its value. This has been repeatedly decided. Smith v. Lisher, 23 Ind. 500; Denny v. Reynolds, 24 Ind. 248; Carr v. Ellis, 37 Ind. 465; Landers v. George, 49 Ind. 309.
In the case last above cited the same question arose in precisely the same way. An action of replevin for a stock of goods was commenced against a sheriff. The plaintiffs alleged that they were the owners and entitled to the possession. An
The appellees insist that they may show, notwithstanding the judgment, that their rights were not, in fact, adjudicated. This precise question was decided adversely to them in the case of Landers v. George, supra, and no reason has been suggested, nor does any occur to us, why the rule there adopted should not be followed; it seems in strict accord with all the authorities.
The appellees refer us to a number of cases in our own reports where it has been held that in a suit upon a replevin bond the defendants may show, in mitigation of damages, that the principal obligors either were the owners or had a lien upon the property in question. In none of these cases, however, was any judgment rendered upon the issues formed, but all of them were dismissed without any adjudication. These cases are, therefore, not in point.
The answer was insufficient, and for the error in overruling the demurrer the judgment should be reversed.
Per Curiam. — It is therefore ordered that the judgment be and it is hereby reversed, at the appellees’ costs, with instructions to sustain the demurrer to the answer.