No. 80 | Ind. Ct. App. | Apr 28, 1891
The only question presented in this case by the appellant’s assignment of error is the overruling by the court below of the demurrer to the complaint.
The appellees sued the appellant in the circuit court to recover possession of a certain gray horse, of which the appellees say they are the owners and entitled to the possession, and which the appellant has the possession of without right, and unlawfully detains from the appellees.
Issues having been joined by a general denial of the com
Over a motion for a new trial made by the appellant, and an exception, the court rendered judgment conformably to the verdict.
The only question discussed by counsel for the appellant is that the court erred in overruling the demurrer to the complaint, the contention being that the horse is not sufficiently described.
In the case of James v. Fowler, 90 Ind. 563" court="Ind." date_filed="1883-05-15" href="https://app.midpage.ai/document/james-v-fowler-7046420?utm_source=webapp" opinion_id="7046420">90 Ind. 563, which, like this, was an action of replevin commenced in the circuit court, the court says: “ Mere uncertainty in the description of the property sought to be recovered would afford no sufficient ground for sustaining a demurrer to the complaint.”
The particular description required by section 1267, R. S. 1881, relates to the affidavit which the plaintiff is required to make where he desires the immediate delivery of the property to him. Such an affidavit was filed in this case but it is separate from the complaint.
Uncertainty of description in such cases could be cured by motion in the trial court for a more particular description. But even if uncertainty of description could be taken advantage of by demurrer, we do not think the complaint in this case vulnerable in that respect.
The description of the horse as given in the complaint is as follows: “ One gray horse six years old this spring, about sixteen and one-fourth hands high, with a small knot about half way between the right nostril and right eye, near the front of face or nose, with collar mark on top of neck, dark mane and tail, with tip end of tail light in color.” This description would seem to be most ample for purposes of identity.
Judgment affirmed, with costs.