Indiana Supreme Court
Plant v. Crane
Plant v. Crane and Another
7 Ind. 486
Decided May 30, 1856
No negative treatmentNo negative treatment found: no reversal on appeal and no treated citing cases.
Summary
The court affirmed a judgment for defendants in a replevin action involving an omnibus and horses. It held that the plaintiff did not adequately account for the original mortgage before offering a certified copy, that related testimony was consequently immaterial, and that the trial court could determine whether the property was returnable when entering judgment. No separate opinions were issued.
Holdings
- Admission of the certified mortgage copy. The certified copy was properly excluded because the plaintiff did not sufficiently account for the absence of the original mortgage. 487
- Exclusion of testimony relating to the mortgage. The trial court properly refused to hear the witness's testimony because it concerned matters connected with the mortgage, which was not in evidence. 487
- Whether the property was returnable when judgment was entered. The jury was not required to determine whether the property was returnable; that question was for the court when rendering judgment. 487
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In this case
Opinion of the Court
Replevin for an omnibus, horses, &c., alleged to be unlawfully detained.
Denial, by the defence, of the unlawful detainer, allegation of property in the defendants, and claim for damages, &c. Issues. Trial by jury. Verdict that the property belonged to the defendants, was of the value of 1,450 *487dollars, and that the damages for detention by the plaintiff in replevin, were 8 dollars and 29 cents. Motion for a new trial overruled, and judgment for the defendant for the value of the property and damages.
D. Wallace, E. Coburn, and R. L. Walpole, for the. appellant.
L. Barbour and A. G. Porter, for the appellees.
The evidence is not upon the record.
Counsel for the appellant claim a reversal of the judgment below, for three reasons:
1. The refusal of the Court to receive in evidence a certified copy of a mortgage.
2. The refusal to hear the testimony of a witness.
3. The rendering of judgment by the Court for the value of the property and the damages, when it was not a part of the verdict that the property could not be returned.
On the first point, it is sufficient to say that the absence of the original was not sufficiently accounted for. The affidavit of loss is, that the mortgage was delivered to the recorder for record, and is not among the papers of the plaintiff. The inference is, that it yet remains in the recorder’s office.
2. As the testimony of Landis related to matters connected with the mortgage, it was unimportant, the mortgage not being in evidence.
3. It was not necessary for the jury to find upon the question as to whether the property was returnable. That question was for the Court, upon the rendition of the judgment; and as the evidence is not of record, we presume in favor of the action of the Court. Property might not be returnable at the finding of the verdict, but might • be at the rendition of judgment, and vice versa. See Noble v. Epperly, 6 Ind. R. 414, 468.
The judgment is affirmed, with 3 per cent, damages and costs.
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