51 Ind. 169 | Ind. | 1875
Lead Opinion
Action of replevin for the recovery of possession of a stock of goods by the appellant, Joseph "Wiler, who sues by his next friend, against the appellee. The case was commenced in the Cass Circuit Court. The venue was-changed to Carroll, and then to Pulaski, where the trial was had. Answer,
1. A general denial.
2. Property in one Jacob Wiler.
There was a motion to strike out the third paragraph of the answer, and also a demurrer thereto, both of which were •overruled. Beply in denial of the second and third paragraphs of the answer.
Trial .by jury, and verdict for the defendant. Motion for a new trial overruled, and judgment for return of property, ■or, if not returned, for the value thereof, etc.
The errors assigned are:
1. The overruling of the motion to strike out the third paragraph of the answer.
2. Overruling the demurrer to the same paragraph of answer.
3. Befusing to grant a new trial.
There was no error in overruling the motion to strike out the third paragraph of the answer, or the demurrer thereto. The answer was a good bar to the action. Had the court struck it out, or sustained the- demurrer thereto, there would probably have been no error of which the defendant could complain. The sheriff had a special property in the goods, which enabled him to defend, and if the goods turned out to be the property of the attachment defendant, entitled him to a return of the property. See Darter v. Brown, 48 Ind. 395, and cases cited; also Davis v. Warfield, 38 Ind. 461.
Under the third assignment of error it is urged that the court improperly admitted in evidence declarations of Jacob Wiler, the plaintiff’s vendor, made after the sale of the goods to the plaintiff The court instructed the jury that such declarations were only to be regarded if they found that there was a conspiracy between Jacob and the plaintiff. We do not find, however, that any exception was taken to the ruling of the court in admitting this evidence. Without an exception, no question is presented for decision. Corey
Little complaint is made as to the instructions. The plaintiff asked this instruction:
“6. The admission and statement of Jacob Wiler, the vendor of the goods, made after the sale and delivery of the goods by him to Joseph Wiler, cannot be considered by you in determining the validity and good faith of the sale as to Joseph Wiler, unless you find they were made in his, ■Joseph’s, presence, or with his knowledge or consent.”
The court added to the instruction this language: “ Or unless you find there was a conspiracy between them to defraud Jacob’s creditors, and that said sale was made in pursuance of said conspiracy. ”
We think the instruction as modified was correct. Caldwell v. Williams, 1 Ind. 405. The evidence having gone to the jury without any proper objection and exception, there is no ground on which" to complain of the instruction. It is urged that the court should have defined or explained to the jury what was meant by a conspiracy to defraud creditors. But we think the court might presume that the jurors had sufficient intelligence to understand what was meant. The plaintiff' if he thought they did not, might have submitted a further instruction on that point to be given by the court.
Upon the facts, we cannot say that the evidence did' not justify the verdict of the jury. There are many circumstances indicative of fraud in the transaction, and that was a question involved in the issues and proper for the jury to decide.
The judgment is affirmed, with costs.
Rehearing
A petition for a rehearing has been filed in this case in which counsel for appellant express the belief that counsel for appellee has misapprehended the state of the record, and that he has misled the court upon the question as to the failure to except to the ruling of the court in admitting the evidence of declarations of Jacob Wiler, and with reference to the failure to point out any objection» to the admissibility of the letter written by Jacob Wiler. Upon examination of the petition and the parts of the record to which our attention is called, we find that the statements relied upon by counsel for appellant to show that an exception was taken to the admission of the parol evidence, and an objection pointed out to the reading of the letter in evidence, are found in the motion for a new trial. It seems almost unnecessary to say that the statements in the motion for a new trial cannot perform this office. The fact that the motion for a neAV trial is contained in a bill of exceptions cannot change the rule. The-motion for a new trial is properly a part of the record, but its statements cannot supply the facts Avhich should appear in the bill of exceptions. Restatements cannot be taken as true like those of the bill of exceptions. Hopkins v. The Greensburg, etc., Turnpike Co., 46 Ind. 187.
The petition is overruled.
