Reish v. Reynolds

68 Ind. 561

Opinion

Niblack, J.

The complaint in this case was in two paragraphs:

The first averred the death of Henry Bowman and the appointment of Alfred W. Reynolds, the plaintiff, as his administrator ; that, at the time of Bowman’s death, the defendant, Emanuel Reish, was in the possession of a sum of money and certain promissory notes belonging to him, said Bowman, of the value of one thousand dollars ; that the defendant had, since the plaintiff's appointment as such administrator, not only failed and refused to pay over said money and to account for said promissory notes, but had converted the same to his own use. Wherefore the plaintiff demanded judgment for the value of the money and notes.

The second averred some facts additional to those above stated, but its material allegations, as we construe them, were substantially the same as those of' the first paragraph. The defendant demurred to both' paragraphs of the complaint, but his demurrer was overruled. Issue joined and trial. Verdict and judgment for the plaintiff'. The only objection urged here to the proceedings below is the alleged insufficiency of both paragraphs of the complaint.

The appellant contends that both paragraphs were bad, because—

First. It was not averred in either of them that the money and notes sued for were wrongfully and unlawfully appropriated by the appellant for his own use;

Second. No demand was averred in either one of them.

The conversion charged in both paragraphs implied a wrongful and unlawful appropriation of the money and notes. 3 Bouvier Institutes, 674, sec. 3,525. It is a well settled rule of law that where a conversion of property is charged, a demand need not also be alleged. Nelson v. Corwin, 59 Ind. 489; Proctor v. Cole, 66 Ind. 576. The appellant’s objections to the complaint can not be sustained.

The judgment is affirmed, with costs.