Wiler v. Manley

Downey, J. 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. [170] 3. That the goods were the property of Jacob Wiler; that certain of his creditors had sued out an attachment against his property, which was in the hands of the defendant as sheriff, and by virtue of which he had seized the goods. 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 [171] v. Rhineheart, 7 Ind. 290; Richardson v. Howk, 45 Ind. 451. It is also objected that the court erred in admitting in ■evidence a letter written by said Jacob Wiler. The bill of exceptions does not show what the ground of objection to this evidence was, and, for this reason, no question with reference to the -ruling is properly before us. Jemison v. Walsh, 30 Ind. 388. 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.