McCreery v. Nordyke

Indiana Court of Appeals

McCreery v. Nordyke

53 N.E. 849, 23 Ind. App. 630, 1899 Ind. App. LEXIS 91

CourtIndiana Court of Appeals

DecidedMay 19, 1899

DocketNo. 2,848

StatusPublished

Cited by3 cases

This text of 53 N.E. 849 (McCreery v. Nordyke) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McCreery v. Nordyke, 53 N.E. 849, 23 Ind. App. 630, 1899 Ind. App. LEXIS 91 (Ind. Ct. App. 1899).

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Opinions

Comstock, J. —

Suit for conversion. Verdict and judgment in the court below in favor of appellee for $237.70.

Appellant assigns as error the action of the court in overruling (1) his motion for a new trial; (2) his motion to set aside the judgment. The third specification of error is that the complaint does not state facts sufficient to constitute a cause of action. It is argued that the complaint is defective for the reason that it does not contain an averment of ownership by appellee of the property alleged to have been converted. The sufficiency of the complaint is challenged for the first time in this appeal. If either paragraph is sufficient, the claim must fail. The third paragraph alleges that at certain dates named, appellant, as the agent and employe of the appellee, received of and from him goods, wares, and merchandise in the sum of -$2,200.11 to be sold by defendant for, plaintiff and accounted for to'plaintiff at the sum and price of $1,804.11; that defendant sold and accounted to plaintiff for said merchandise in.the sum of $1,539.16; that a bill of particulars of said goods is filed with the complaint as an exhibit; that the rest of said merchandise, and the proceeds accruing from the sale thereof of the valúe of $300, the defendant converted to his own use, and embezzled, etc.

When a complaint is sufficient to bar another action for the same cause, and it is questioned for the first time in the assignment of errors, it’ will be held good. Waiving the question whether the complaint is insufficient as between bailor and bailee upon demurrer, we are clearly of the opinion that it is sufficient to bar another action for the same cause, and must, therefore, under the rule, hold it to be sufficient. The complaint shows a right of action in appellee [632]*632sufficient to put appellant upon answer. This also disposes of the second specification of error, viz., that the court erred in overruling appellant’s motion to set aside the judgment 'on complaint urged upon the ground that there was no sufficient complaint upon which 'to go to trial. Under the first and remaining specification of error, the overruling of the motion for a new trial, appellant discusses the action of the court in giving instructions one, five, and nine. No attempt is made to make the evidence a part of the record. There is no bill of exceptions, and while there appears at the close of each of said instructions the words “given and excepted to,” signed by the judge of the trial court and dated, it does not appear by whom the exception was taken. This assignment, so far as discussed by appellant, presents no question for the determination of this court. Judgment affirmed.

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Comstock, J. —

Suit for conversion. Verdict and judgment in the court below in favor of appellee for $237.70.

Appellant assigns as error the action of the court in overruling (1) his motion for a new trial; (2) his motion to set aside the judgment. The third specification of error is that the complaint does not state facts sufficient to constitute a cause of action. It is argued that the complaint is defective for the reason that it does not contain an averment of ownership by appellee of the property alleged to have been converted. The sufficiency of the complaint is challenged for the first time in this appeal. If either paragraph is sufficient, the claim must fail. The third paragraph alleges that at certain dates named, appellant, as the agent and employe of the appellee, received of and from him goods, wares, and merchandise in the sum of -$2,200.11 to be sold by defendant for, plaintiff and accounted for to'plaintiff at the sum and price of $1,804.11; that defendant sold and accounted to plaintiff for said merchandise in.the sum of $1,539.16; that a bill of particulars of said goods is filed with the complaint as an exhibit; that the rest of said merchandise, and the proceeds accruing from the sale thereof of the valúe of $300, the defendant converted to his own use, and embezzled, etc.

When a complaint is sufficient to bar another action for the same cause, and it is questioned for the first time in the assignment of errors, it’ will be held good. Waiving the question whether the complaint is insufficient as between bailor and bailee upon demurrer, we are clearly of the opinion that it is sufficient to bar another action for the same cause, and must, therefore, under the rule, hold it to be sufficient. The complaint shows a right of action in appellee [632]*632sufficient to put appellant upon answer. This also disposes of the second specification of error, viz., that the court erred in overruling appellant’s motion to set aside the judgment 'on complaint urged upon the ground that there was no sufficient complaint upon which 'to go to trial. Under the first and remaining specification of error, the overruling of the motion for a new trial, appellant discusses the action of the court in giving instructions one, five, and nine. No attempt is made to make the evidence a part of the record. There is no bill of exceptions, and while there appears at the close of each of said instructions the words “given and excepted to,” signed by the judge of the trial court and dated, it does not appear by whom the exception was taken. This assignment, so far as discussed by appellant, presents no question for the determination of this court. Judgment affirmed.

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Bluebook (online)

53 N.E. 849, 23 Ind. App. 630, 1899 Ind. App. LEXIS 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccreery-v-nordyke-indctapp-1899.

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