DocketNumber: No. 2,907
Citation Numbers: 23 Ind. App. 274
Judges: Henley
Filed Date: 11/16/1899
Status: Precedential
Modified Date: 7/24/2022
Action by appellee upon a replevin bond ■executed by appellants to M. L. Conroy, R. II. Wells, and Benj. .F. Hayes, Sheriff of Lake county, Indiana, who as such sheriff had levied upon certain propertyLy virtue of an execution issued for the collection of' a judgment obtained against said Conroy in a case entitled Sample v. Conroy, in said court. The judgment against Conroy was-assigned in proper form to appellee by the owner thereof, one Littleton Sample, and thus appellee succeeded to whatever rights said Littleton Sample had growing out of such ownership. Briefly stated this record shows the following state of facts: (1) That one Littleton Sample obtained a judgment against M. L. Conroy; (2) that said Sample sold and assigned said
Appellant filed an answer in this cause consisting of five paragraphs, and also an.answer in abatement. A demurrer to the answer in abatement was overruled, and, upon the trial of the issue presented by the plea in abatement, the finding and judgment was in favor of appellée, that the action do not abate; in fact appellants did not introduce any evidence upon the trial of this issue.
Appellee’s demurrer for want of facts was sustained to the second and fourth paragraphs of answer, and overruled as to the third and fifth. There was a trial upon the issue tendered by the answers in bar, and finding and judgment in favor of appellee, and from said judgment this appeal is prosecuted.
The appellants have assigned error as follows: “(1) The complaint does not state facts sufficient to constitute a cause of action. (2) That the superior court of Lake county had no jurisdiction of the subject-matter of said action. (3) That there is a defect in parties plaintiff in that necessary parties plaintiff have not been made. (4) The court erred in overruling and finding against appellants’ plea in abatement herein filed. (5) The court erred in overruling appellants’ demurrer to plaintiff’s complaint. (6) The court erred
.We will dispose of the various specifications! of this assignment of errors in the order in which they appear herein:
■ The statute permits a complaint to be tested for the first • time upon appeal for one cause only, that is, that the complaint does not state facts sufficient to constitute a cause of action. Appellants’ whole argument is upon the ground that there is a defect of parties plaintiff. Such a defect is not presented by the first specification of appellants’ assignment of errors.
The second specification, if proper, is waived by a failure to discuss it.
The third specification presents no question to this court.
As to the fourth specification, it may be said that the lower court overruled appellee’s demurrer to appellants’ answer in abatement, and of such action appellant cannot complain; and if the court erred in finding against the appellant upon the issue tendered by such answer the error is not properly assigned here.
The fifth specification of the assignment of error presents • the question of the sufficiency of the complaint. It is not contended by appellants that the first reason assigned in the
It may be further said that the property upon which the execution was levied was the fund to which appellee must look for the payment of the judgment, and that appellee had an interest in its preservation; that, in fact, the bond in suit, which was executed to the sheriff and the owners of the property levied upon, was for the benefit of appellee, and he would have a right to an action upon it. Such is the effect of the decision in the case of Thomas v. Irwin, 90 Ind. 557. See, also, Moore v. Jackson, 35 Ind. 360.
The question then remains, can the action be prosecuted by appellee without joining the sheriff as plaintiff, or, if he refuse to join as plaintiff, then as defendant. In none of the appealed cases in this State has the question thus presented been decided. The case of Pipher v. Johnson, 108 Ind. 401, is not in point, and the syllabus does not state the rule 'of law announced in the opinion. The case of Watts v. Johnson, 16 Ind. 374, holds that a judgment creditor may join with the sheriff in an action on a replevin bond although he is not a party to the original suit. No other question as to the complaint was before the Supreme Court in the last mentioned case. In the case of Fos
• Our statute requires that all actions shall be brought in the name of the real party in interest.' §251 Burns 1894. It has been often held that a person for whose benefit a contract has been made can maintain an action thereon in his own name. Waterman v. Morgan, 114 Ind. 237; Williams v. Markland, 15 Ind. App. 669; Young v. Young, 21 Ind. App. 509. There can be no doubt but that the bond in this cause was given for the benefit of the owner of the judgment, for the payment of which judgment the replevied chattels were being held by the sheriff at the time they were taken from him. The sheriff held the property by virtue of his levy and in no other way; he could occupy no better position than trustee for appellee. We see no good reason why appellee alone could not maintain this action upon the replevin bond for the recovery of whatever was due him by its terms.
Appellants’ sixth specification of error is not available. The assignment is joint, and if either paragraph- of answer is bad the error, if any, is not presented. The record shows that the court overruled appellee’s demurrer to the third' paragraph of appellants’ answer. Appellant could not complain of the action of the lower court in this regard. This specification is not available for another reason. The record as it comes to us does not contain the demurrers filed by appellee to the various paragraphs of answer filed by appellants; on the contrary, it affirmatively shows that no such demurrers are on file in the clerk’s office of Lake county where the cause was commenced and prosecuted to final judgment.
Specification seven presents no question. There was a general verdict in this cause. Specification nine presents the
It is also contended that the judgment is erroneous being too large; that the lower court gave appellee judgment for the costs in the case of Sample v. Conroy. It will be remembered that appellee is the assignee of the judgment in the case of Sample v. Conroy. Hays v. Boyer, 59 Ind. 341; Goodwin v. Smith, 68 Ind. 301. Without passing upon the question as to the right of appellee to recover the above mentioned costs-in this case, it is sufficient to s'ay that the judgment does 'not show that such costs were included.
. The ninth specification of the assignment of errors is waived by-failure to discuss it. ; , ■
: • The tenth ,is not predicated upon any motion shown by the record, and is not properly assignable as error in this court. The same may be. said of the eleventh and twelfth specifications, parts of which are properly assignable as reasons, for a new trial.
We find -no available error in the record. -Judgment affirmed.