Ohio Finance Co.
v.
Berry

Supreme Court of IndianaOct 27, 1941
219 Ind. 94 (Ind. 1941)
219 Ind. 9437 N.E.2d 2

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No. 27,633.

Filed October 27, 1941.

1. ABATEMENT AND REVIVAL — Another Action Pending — Identity of Cause of Action — Property Involved in Replevin Not Shown to Have Been the Same. — Where, in an action for trespass to personal property, conversion of said property, and malicious prosecution, a demurrer was sustained to a plea in abatement which alleged that prior to the commencement of the action the defendant filed a complaint in replevin against plaintiffs before a justice of the peace, the complaint being set out in full, and that the action was venued to the municipal court of a county where it was pending without a final judgment, the ruling of the court was proper, since it did not appear from the plea that the property sought to be replevied was the same as that with respect to which trespass and conversion were claimed. p. 96.

2. ABATEMENT AND REVIVAL — Another Action Pending — Identity of Cause of Action — Test for Determining. — The test to determine whether a second action should be abated is whether the relief sought in the second action is the same as in the first action, or whether a judgment, if rendered on the merits in the first, could be pleaded as a bar in the second. p. 96.

3. TRIAL — Verdict — Sufficiency of Evidence — One Paragraph of Complaint Sustained. — Where a general verdict was returned in an action for trespass to personal property, conversion of that property, and malicious prosecution, the judgment should not be disturbed for insufficiency of the evidence if it sustains either paragraph of the complaint. p. 96.

4. TRESPASS — Actions — Evidence — Sufficiency — Exemplary Damages Justified. — Where, in an action for trespass to personal property, it was shown that defendant sent its agent and constable to plaintiffs' home and had them unlawfully seize and carry household goods of the value of $200, under pretext of authority of a writ of replevin which was void, and that plaintiffs were deprived of the use of their property for several months and were subjected to great embarrassment, humiliation, and disgrace, the evidence was sufficient to sustain a verdict in favor of plaintiffs, and was sufficient to support a recovery of exemplary damages. p. 96.

5. TRESPASS — Actions — Damages — Amount Awarded Not Excessive. — In an action for trespass to personal property, wherein it was shown that plaintiffs' household goods of the value of $200 were taken and carried away under pretext of authority of a writ of replevin which was void, and wherein the evidence was sufficient to support a recovery of exemplary damages, a verdict for $1,300 was not excessive. p. 96.

From the Hancock Circuit Court; John B. Hinchman, Judge.

Action by L. Carl Berry and another against the Ohio Finance Company for damages for trespass to personal property, conversion thereof, and for malicious prosecution of an action to replevin such property. From a judgment for plaintiffs, defendant appealed. (Transferred from the Appellate Court under § 4-215, Burns' 1933, § 1359, Baldwin's 1934.)

Affirmed.

Lutz, Johnson Lutz, of Indianapolis ( William E. Bussell, of Greenfield, of counsel), for appellant.

Louis Rosenberg, of Indianapolis ( Jackson Van Duyn, of Greenfield, of counsel), for appellees.

Hammond, Buschmann, Krieg DeVault, of Indianapolis, amici curiae.


The appellees were plaintiffs below and their complaint was in three paragraphs. The first paragraph sought damages for trespass to personal property; the second charged conversion of said property; and the third was for malicious prosecution of an action brought by the appellant to replevin said property.

There was an amended plea in abatement to the complaint as a whole, to which the trial court sustained a demurrer for want of facts. This ruling is assigned as error. The amended plea alleged merely that prior to the commencement of the present action the appellant filed a complaint in replevin against the appellees before a justice of the peace, which complaint was set out in full, and that the action was venued to the municipal court of the county, where it was pending without a final judgment.

It does not appear from the plea that the property sought to be replevied was the same as that with respect to which trespass and conversion were claimed. The test to determine whether 1, 2. the second action should be abated is whether the relief sought in the second is the same as in the first action, or whether a judgment, if rendered on the merits in the first, could be pleaded as a bar in the second. Heaton, Rec., v. Estate of Wilson (1925), 82 Ind. App. 484, 146 N.E. 588. It is unnecessary to consider whether actions for trespass upon or conversion of personal property may be abated on account of the pendency of another action between the same parties for the replevin of the same property. There was no error in sustaining the demurrer to the plea in abatement.

The only other errors relied upon by the appellant relate to the overruling of its motion for a new trial, under the specifications that the verdict is not sustained by sufficient evidence, that it is contrary to law, and that the damages assessed by the jury are excessive.

The verdict was general, and the judgment will not be disturbed for insufficiency of the evidence if it sustains either paragraph of complaint. Union Traction Co. v. Smith (1921), 3-5. 76 Ind. App. 487, 130 N.E. 813. We may therefore consider only the evidence relating to the paragraph of complaint seeking damages for trespass to personal property. It appears that the appellant sent its agent and a constable to the home of the appellees and had them unlawfully seize and carry away household goods of the value of $200 belonging to the appellees, under pretext of authority of a writ of replevin, which was void; that the appellees were deprived of the use of their property for several months; and that the appellees were subjected to great embarrassment, humiliation, and disgrace. This is sufficient to sustain a verdict in favor of the appellees. Richardson v. Brewer (1881), 81 Ind. 107. It will also support the recovery of exemplary damages, and we cannot say that a verdict for $1,300 is excessive. Sinclair Refining Co. v. McCullom (1940), 107 Ind. App. 356, 24 N.E.2d 784; Ault v. Phillips (1941), 108 Ind. App. 535, 27 N.E.2d 379; Aufderheide v. Fulk (1917), 64 Ind. App. 149, 112 N.E. 399.

The judgment is affirmed.

NOTE. — Reported in 37 N.E.2d 2.