Starr v. Cass

23 Ind. 458 | Ind. | 1864

Gregory, J.

Starr sued Cass and Dorr on an injunction bond. Hawley was a constable, and was only a nominal party.

The complaint alleges that one John J. Reedman recovered a judgment before one Azor Kellog, a justice of the peace in and for Porter county, against Thomas W. Shinabarger, William H. Shinabarger, and Cornelius O’Neil; that Reedman assigned the judgment to plaintiff; that plaintiff caused an execution to be issued on the judgment; that the execution was delivered to Hawley, constable of Center township in said county; that the constable levied the execution on a large quantity of corn and wheat which belonged to Shinabarger at the date of the issue of the execution, and at the date of the levy, and that the constable proceeded to advertise and sell said property to satisfy said judgment and execution, but that tbe defendant, Gass, procured and caused an injunction to be issued out of tbe Court of Common Pleas against tbe plaintiff and the said Hawley, restraining them from selling the property, and from interfering with the same, which injunction was served on them; that the injunction was afterward by the court dissolved, and the suit dismissed; that Gass had possession of the property levied on, and that he continued in possession of the same, and used and converted the same to his use; that Shinabargers. and O’Neil had not, at the date of the levy, nor have they had since, any other property out of which said debt could be made.

An answer was filed by defendants in several paragraphs, and replies thereto were filed by the plaintiff', which lead to issues of fact. A jury was waived; trial by the court, and a finding for the defendants; motion for a new trial overruled, and plaintiff excepted. The evidence is contained in the record.

Erom the evidence it appears that Gass rented some lands to William H. Shinabarger, on which the corn levied on was raised by the latter. The question of fact in dispute, on which the case turns, is upon what terms was it rented ?

Starr contends that Shinabarger was to raise the crop, and deliver Gass two-fifths in the crib. Gass says that he employed Shinabarger to work the land, and was to give him three-fifths of the crop raised, for his labor. On this point the testimony is conflicting.

It further appears, in the testimony of • William H Shinabarger, that some month or two after the issue of the. execution, Gass bought the crop from him, paying therefor $175. The plaintiff then offered to prove, by Shinabarger, that at the time Gass proposed to buy the corn of him, he told him, as an inducement to sell, “that if he (the said witness) would sell said corn to him (said Gass) and go to Iowa, he (the said witness) would not need to pay the Starr judgment.” The defendants objected to this testimony, and the court sustained the objection, and refused to admit the evidence offered.

J. JE. McDonald and A. D. Boache, for appellant.

"We think this testimony ought to have been admitted; it tended to sustain the theory of the plaintiff’s case; it was a part of the transaction, and tended to throw light on the character of the claim set up by Gass.

The judgment of the Court of Common Pleas is reversed ; cause remanded to said court for a new trial, and further proceedings in accordance with this opinion. Costs here.