« ΠροηγούμενηΣυνέχεια »
(167 Ind. 528)
plaint, and a trial of said cause resulted in a JACKSON v. MORGAN et al. (No. 20,862.) 1 verdict in favor of appellant, the defendant (Supreme Court of Indiana. Oct. 3, 1906.)
therein, and that said property was of the 1. REPLEVIN-BONDS-ACTION-PARTIES.
value of $100. Judgment was rendered upon In an action on a replevin bond, persons said verdict in favor of the appellant, the dewho were not parties to the bond were im- fendant in said action, for the return of said properly joined as defendants.
promissory notes, and for $100, the value 2. SAME-JUDGMENT-VALUE OF PROPERTY. Burns' Ann. St. 191, § 558, declares that
thereof, "in case return cannot be had," and in actions for the recovery of specific personal
for cost. Said judgment was affirmed on approperty the jury must assess the value of the peal. Morgan v. Jackson, 32 Ind. App. 169, property and damages for the taking or de
69 N. E. 410. After the judgment was af. tention, whenever by their verdict there will be a judgment for the recovery or return of the
firmed, appellant refused to accept the promproperty. Section 581 provides that in such issory notes when tendered, and Morgan and an action judgment for plaintiff may be for the delivery of the property, or the value there
Morgan thereupon paid and satisfied the of in case delivery cannot be had, and damages
judgment, interest, and cost. Appellant affor the detention. Held that, whether the ver- terwards brought this action on the replevin dict in replevin be for plaintiff or defendant, bond to recover damages, including the the value of the property and all damages for its taking and detention must be settled and de
amount of an alleged depreciation in the valtermined in the action of replevin.
ue of said promissory notes between the time [Ed. Note.For cases in point, see vol. 42, of the taking thereof in the replevin suit and Cent. Dig. Replevin, 88 360, 377, 387.)
the time of the trial of said action. The 3. JUDGMENT-CONCLUSIVENESS.
court below held, on demurrer for want of Whenever there is a trial and judgment in
facts, that the same was insufficient against an action of replevin, the judgment is conclusive on the parties and their privies in an action on
Joseph R. and Louis J. Morgan, because they the replevin bond as to all matters, that were or had not joined in the execution of the said might have been litigated under the issues.
replevin bond. This ruling was correct. (Ed. Note.--For cases in point, see vol. 30,
Borman v. Jung, etc., Co., 23 Ind. App. 399, 55 Dig.
N. E. 495; Supreme Council, etc., v. Boyle, 15 4. REPLEVIN-GENERAL DENIAL-ISSUES AND
Ind. App. 345, 44 N. E. 56.
Selenia J. Morgan, the surety on said real denial, the right of possession of the prop- plevin bond, having died after the commenceerty sued for, its value, and damages for the
ment of this action, the administrator of her taking or detention thereof were in issue. [Ed. Note.For cases in point, see vol. 42,
estate filed an answer, alleging that in the Cent. Dig. Replevin, 88 257-263, 272-277.] replevin suit the jury returned a verdict in 6. JUDGMENT-RES JUDICATA.
favor of the defendant, the appellant in this Where defendant in replevin recovered a action, and that "said property is of the value judgment for the return of certain notes sued
of $100"; that judgment was rendered on said for, and for $100, the value thereof, in case
verdict in favor of said defendant for the return could not be had, under a plea of the general issue, and such judgment was satisfied recovery of said promissory notes, or, upon by a payment of such amount, it was a bar to failure of said plaintiffs to return the same, a subsequent action on the replevin bond to
that said defendant recover of them the sum recover damages, including the amount of an alleged depreciation in the value of the notes of $100, the value of the property "at the time between the time of the taking in the replevin of the trial," and for cost; that long before suit and the time of the trial thereof.
the commencement of this action the plain[Ed. Note.--For cases in point, see vol. 30,
tiffs in said action tendered to appellant, the Cent. Dig. Judgment, g 1104; vol. 42, Cent. Dig. Replevin, 8 498.]
defendant in said action, all of said promis
sory notes, which he refused to accept, and Appeal from Circuit Court, Hamilton
thereupon the plaintiffs in said action fully County; S. R. Artman, Special Judge.
paid and satisfied said judgment for $100, inAction by George W. Jackson against Jo
terest, and cost. Appellant's demurrer for seph R. Morgan and others. From a judg.
want of facts to said answer was overruled, ment in favor of defendants, plaintiff ap
and, he refusing to plead over, judgment was peals. Affirmed.
rendered against him. Appellant insists that Neal & Beals and Doan & Orbison, for ap- said answer was insufficient, because, no pellant. Daniel Wait Howe, Shirts & Fertig, damages having been assessed in the replevin and Chas. E. Averill, for appellees.
action, he was entitled to recover the same
in this action-citing Yelton v. Slinkard, 85 MONKS, J. It appears from the record Ind. 190; Whitney v. Lehmer, 26 Ind. 505. that in 1901 appellees Joseph R. Morgan and Section 558, Burns' Ann. St. 1901 (section Louis J. Morgan commenced an action in the 549, Rev. St. 1881; section 549, Horner's Ann. Marion circuit court against appellant to re- St. 1901), requires that, “in actions for the cover the possession of certain promissory recovery of specific personal property, the notes. A replevin bond was executed by Se jury must assess the value of the property, lenia J. Morgan as surety; the plaintiffs in as also the damages for the taking or detensaid action not joining therein. The notes tion, when ever by their verdict, there will were delivered to said plaintiffs by the sheriff. be a judgment for the recovery or return of Appellant filed a general denial to the com- the property." Section 581, Burns' Ann. St
* Rehearing denied.
1901 (section 572, Rev. St. 1881; section 572, , evident that the right of possession of the Horner's Ann. St. 1901), provides that, "in an promissory notes, their value, and the damaction to recover the possession of personal ages for the taking or detention thereof property, judgment for the plaintiff may be were issues in said cause. In Whitney V. for the delivery of the property, or the value Lehmer, 26 Ind. 505, which was a suit on a thereof in case delivery can not be had, and replevin bond by the defendant in the action damages for the detention," when the defend- of replevin, it appeared that he had only ant is entitled to a return of the property, judg- taken a judgment for the return of the propment for him "may be for the return of the erty, and that neither the value thereof, nor property, or its value in case return cannot be the damages, bad been assessed or found, nor had, and damages for the taking and with- any judgment rendered therefor. The court holding of the property.” It is evident that held that, as there had been no such assesthese sections contemplate that whether the ment in the replevin action, “it does not folverdict and judgment be for the plaintiff or low that the property was of no value." defendant, for the recovery or return of the
and that the value thereof could not be reproperty, the value thereof, and all damages covered in an action on the replevin bond for its taking or detention, must be settled for failure to return the property as adjudgand determined in the action of replevin;
ed by the court. In Yelton v. Slinkard, 85 Noble v. Epperly, 6 Ind. 414, 415; Tardy v.
Ind. 190, a suit on a replevin bond by the Howard, 12 Ind. 404; Conner v. Comstock,
defendant in the replevin action, in which 17 Ind. 90, 92, 93; Chissom v. Lamcool, 9 Ind.
there was verdict and judgment for the 530, 532, 533; Matlock's Adm’r v. Straughn,
return of the property to the defendant, and 21 Ind. 128; Crocker v. Hoffman, 48 Ind. 207,
cost, but no assessment nor judgment for 209, 210; Anderson v. Lane, 32 Ind. 102;
its value, nor the damages for withholding it, Baldwin v. Burrows, 95 Ind, 81, 84, 85; 1
the court held that, if the property was not Works' Prac. & Pldng. (2d Ed.) p. 552, § 846.
returned as adjudged, a recovery could be See, also, Teel v. Miles, 51 Neb. 542, 545, 71
had upon the bond for its value and damages. N. W. 296. Whenever there is a trial and
The court said, however, in Whitney v. Lehjudgment in an action of replevin, the same
mer, 26 Ind. 506, 507: "An assessment of is conclusive upon the parties and their
the value of the property in the replevin privies, in an action on the replevin bond, as
suit, and a judgment in the alternative for to all matters that were, or might have been,
its return or its value, would, as evidence, litigated under the issues. Landers v.
undoubtedly have bound the parties upon George, 49 Ind. 309, 321; Smith v. Mosby, 98
the question of value, for the reason that it Ind. 445, and cases cited; McFadden V.
would have been a judicial determination of Fritz, 110 Ind. 1, 10 N. E. 120, and cases
that question by a tribunal having that aucited; Daniels V. Mansbridge (Ind. T.) 69
thority, putting it at rest forever.” In this S. W. 815; 1 Herman on Estop. 88 125,
case, however, the jury assessed the value 253. See, also, 1 Van Fleet's Former Ad- of the property, which, as decided in Whitjudication, pp. 359, 360, § 133; Cobbey on
ney v. Lehmer, 26 Ind. 503, 506, 507, and Replevin, $$ 1170, 1346; Ellis v. Crowl, 46
cases cited, puts that question "at rest forKan. 100, 26 Pac. 454; Carroll v. Woodlock,
ever.” Does the fact that the jury assessed, 13 Mo. App. 574; White v. Van Houten,
and the court adjudged, no damages except 51 Mo. 577; State v. Dunn, 60 Mo. 60, 71; the value of the promissory notes in the acHanlon v. O'Keife, 55 Mo. App. 528, 532,
tion of replevin, prevent appellant recovering 533; Freeman v. Lavenue, 99 Mo. App. 173,
on the replevin bond any damages he might 177, 72 S. W. 1085, and cases cited; Drew
have recovered as such in the action of your V. Merrill, 112 Mich. 681, 71 N. W. replevin? 486.
It is evident, under the authorities cited Under the general denial, a defendant in in this opinion, that a judgment in an action an action to recover the possession of per- of replevin for the return of the property to sonal property may give in evidence any- the defendant, or its assessed value and damthing that will tend to defeat plaintiff's ages and cost, in case return could not be claim of title or right of possession. Lane
had, fixes the measure of damages in an acV. Sparks, 75 Ind. 278, and cases cited; Ault
tion on the replevin bond, where the propman v. Forgey, 10 Ind. App. 397, 401, 403,
erty is not returned, at least as to every36 N. E. 939, and cases cited; Shipman Coal thing before the trial of the cause. The Co. V. Pfeiffer, 11 Ind. App. 445, 449, 450, claim for damages in the action of repleyin, 39 N. E. 291; 2 Works' Ind. Prac. & Pldg. by either party, when there is judgment for $$ 1491, 1492; Cobbey on Replevin (20 Ed.) the recovery or return of the property, in$$ 752, 825; 1 Ency. of Pldg. & Prac. p. cludes the value of the property, as well as 822. Under such general denial, if the case the other damages to which he may be enmade by the evidence authorizes a return titled. This claim is entire and indivisible, of the property to the defendant, he is en- and a party cannot recover a part of it in titled to such judgment. Matlock's Adm'r v. one action and subsequently maintain an acStraughn, 21 Ind. 128; Conner v. Comstock, tion for the remainder. Daniels V. Mans. 17 Ind. 90, 92, 93. As appellant filed a gen- bridge, 69 S. W. Rep. 815. Appellant recoveral denial in the action of replevin, it is ered in the action of repleyin the value of the property, one of the items of damages, MONTGOMERY, J. Appellant was conif the property was not returned to him as victed of an assault and battery with intent adjudged. If there were other items of dam- to commit rape. A number of alleged errors, ages, the time for appellant to prove and which might properly have been urged as have them assessed was when the action of grounds for a new trial, have been assigned. replevin was tried. He has had his day in The only proper assignment of errors is the court, not only as to the value of the prop- overruling of appellant's motion for a new erty, but as to all other claims for damages, at trial. The motion for a new trial is not emleast to the time of the trial. In Daniels v. braced in the record proper, but only in what Mansbridge, 69 S. W. 815, decided by the purports to be a bill of exceptions. This bill Court of Appeals of the Indian Territory, the of exceptions is not identified, but is merely defendant in the action of replevin, having attached to the transcript, and there is no obtained judgment for the
gent for the return of the record entry of the filing of the same. If property, or for its value, $1,167, in case re- it were conceded that this bill of exceptions turn could not be had, and for costs, brought constituted a part of the record, which we suit on the replevin bond, alleging that he need not and do not decide, still it must be was damaged by “the unlawful and willful held that a motion for a new trial, which is seizure, sale, conversion, and detention of copied in such bill, but does not appear elsesaid property in the sum of $2,020.” Before where, is not properly a part of the record. the commencement of the action on said Wilson v. State, 156 Ind. 631, 59 N. E. 380, replevin bond, the plaintiffs in the replevin 60 N. E. 1086, and cases cited. suit paid and satisfied the judgment, interest, In the absence of the motion for a new and cost in said action for replevin. The trial, no error is made to appear, and the statutes of said territory, as to the verdict judgment is affirmed. and judgment in an action for the recovery of personal property, were the same as sec
(39 Ind. App. 577) tions 558, 581, Burns' Ann. St. 1901 (Sections
ROBERTS v. LEUTZKE et al. (No. 5,815.)1 549, 572, Rev. St. 1881; sections 549, 572,
(Appellate Court of Indiana, Division No. 1. Horner's Ann. St. 1901). Said court, quoting
Oct. 3, 1906.) said statutes, held that, the judgment and
1. JUDGMENT-FOREIGN JUDGMENTS-ACTIONS cost having been fully paid and satisfied, -COMPLAINT. no recovery could be had upon the replevin Where a complaint on a foreign judgbond for such damages.
ment showed that in an action commenced by
plaintiffs against defendant in the circuit court It is not necessary for us to determine
of M. county, Wis., defendant entered a full whether or not the value of the property ag- appearance, that on the trial the judgment sessed by the jury should be its value at the
sued on was rendered, and that the Wisconsin time of the trial, as in the replevin action in
court was a court of general jurisdiction, the
complaint was sufficient to require an answer, this case, or its value wben taken on the writ
though it contained neither copies of the pleadof replevin, for the reason that, even if er- ings nor allegations showing that the judgment ror were committed in assessing the value
declared on was responsive to the issues. at the time of the trial, the same is conclu
[Ed. Note.-For cases in point, see vol. 30,
Cent. Dig. Judgment, 88 1772, 1773.] sive on the parties and their privies so long
2. SAME-EVIDENCE-TRANSCRIPT. as said judgment stands unreversed. It fol
Where the transcript of a foreign judglows, therefore, that the court did not err in
ment, though not containing the pleadings and overruling appellant's demurrer to said an- issues, was properly authenticated, as required swer.
by Burns' Ann. St. 1901, 88 458, 479, and
exhibited an entry of a personal judgment by Judgment afirmed.
the circuit court of M. county, Wis., in favor of plaintiff and against defendant for a specified sum, it was properly admitted in evidence in a
suit on such judgment, and was prima facie (167 Ind. 160)
evidence of the debt. WURFEL v. STATE. (No. 20,807.)
[Ed. Note.-For cases in point, see vol. 30,
Cent. Dig. Judgment, $ 1782.] (Supreme Court of Indiana. Oct. 4, 1906.)
3. SAME-PRESUMPTIONS. CRIMINAL LAW-APPEAL - RECORD - MOTION Where, in an action on a foreign judgment, FOR NEW TRIAL.
it sufficiently appeared from the transcript that A motion for a new trial in a criminal casc the judgment declared on was rendered by a which is copied in the bill of exceptions, but court of record, it would be presumed that such which does not appear elsewhere, is not a part court was a court of general jurisdiction, had of the record.
jurisdiction of the subject-matter of the ac[Ed. Note.-For cases in point, see vol. 15,
tion and the parties thereto, and rightfully gave Cent. Dig. Criminal Law, $8 2790, 2800, 2946.) the judgment sued on.
(Ed. Note.For cases in point, see vol. 30, Appeal from Circuit Court, Clark County ; Cent. Dig. Judgment, $$ 1473, 1781.] C. W. Cook, Special Judge.
4. SAME JURISDICTION COLLATERAL AT. John Wurfel was convicted of an assault TACK.
In an action on a foreign judgment, jurisand battery with intent to commit rape, and
diction, while presumed, is nevertheless a subhe appeals. Affirmed.
ject open to inquiry, and may be collaterally
attacked. Jas. W. Fortune, for appellant. Chas. W.
[Ed. Vote.--For cases in point, see vol. 30, Miller, Atty. Gen., for the State,
Cent. Dig. Judgment, $ 1475.)
1 Rehearing denied.
signed by appellant for a new trial in the A judgment is conclusive on all questions
order by him discussed, our attention is which were or might have been litigated and determined within the issues before the court; but
called (1) to the ruling of the court in adif the judgment is not responsive to the is mitting in evidence, over his objection, the sues, and is not an adjudication of a subject
transcript of the judgment of the Wisconsin included therein, it is void.
court. This transcript does not contain the [Ed. Note.--For cases in point, see vol. 30, Cent. Dig. Judgment, $8 1263-1268.]
pleadings and issues tendered in that court, 6. EQUITY—SCOPE OF RELIEF.
and upon that ground appellant bases his Where, in a suit in equity, the court bad objection. That the transcript is properly jurisdiction of the parties and subject-matter, authenticated under sections 458, 479, Burns' it had power to determine the rights of the parties on the facts and grant any relief that
Ann. St. 1901, and exhibits an entry of a might be proper within the issues.
personal judgment given by the circuit court [Ed. Note.—For cases in point, see vol. 19, of Manitowoc county, Wis., in favor of apCent. Dig. Equity, $$ 986–988.]
pellees and against appellant, for $3,884.85, 7. CANCELLATION OF INSTRUMENTS RELIEF is unquestioned. This being true, it was GRANTED-PERSONAL JUDGMENT.
properly admitted in evidence (Lieb v. In a suit to set aside certain notes for fraud, plaintiff prayed that defendants be per
Lichtenstein, 121 Ind. 483, 490, 23 N. E. 284; petually restrained from selling or negotiating Bailey v. Martin, 119 Ind. 103, 21 N. E. 346), or otherwise transferring the notes, that they and was prima facie evidence of the debt be surrenderd and canceled, that a temporary injunction issue, that plaintiff recover damages
herein sued on (Holt v. Alloway, 2 Blackf. and costs, and for such further relief as was
108). just and equitable. At the time the suit was The second reason discussed by appellant brought plaintiff did not know that the notes
in support of his motion for a new trial is had been transferred and were in the hands of innocent purchasers, which developed at the
that the decision of the trial court is not trial. Held, that the court, on determining sustained by sufficient evidence and is conthat the notes were fraudulent, was authorized
trary to law. It is a familiar rule of law in such suit to render a personal judgment against defendants, though equitable relief that all presumptions and intendments are could not be granted.
to be indulged in favor of the regularity of [Ed. Note. For cases in point, see vol. 8, all the acts and proceedings of courts of Cent. Dig. Cancellation of Instruments, $ 114.]
general jurisdiction, that they have jurisAppeal from Circuit
Circuit Court, Hamilton diction to give the judgments they render, County; Ira W. Christian, Judge.
and that such judgments are according to the Action by Charles Leutzke and others laws of the state where had. In the case at against Austin Roberts. From a judgment bar it sufficiently appears from the tranfor plaintiff's, defendant appeals. Affirmed. script that the judgment declared on was Gavin & Davis, for appellant. Shirts &
rendered by a court of record, and, being
a court of record, it is presumed to be a Fertig, for appellees.
court of general jurisdiction (old Wayne, MYERS, J. The complaint in this case is
etc., Association v. McDonough, 164 Ind. 321, in one paragraph, and is founded upon a
330, 73 N. E. 703); and, applying the rule judgment rendered in favor of appellees and just stated, it is presumed to have jurisagainst appellant in the circuit court of
diction of the subject-matter of the action Manitowoc county, Wis. The overruling of
and of the parties interested (Old Wayne, a denurrer to the complaint is assigned as
etc., Association V. McDonough, supra; error. Appellant contends that the com Gates v. Newman, supra), and to have rightplaint is defective for the reason that it does fully given the judgment sued on (Runner not disclose the cause of action or subject V. Scott, 150 Ind. 441, 50 N. E. 479; Galpin v. matter in controversy before the Wisconsin Page, 18 Wall. [U. S.] 350, 21 L. Ed. 959). court. According to appellant's theory, in While jurisdiction may be presumed, it is order to make this complaint good, it should nevertheless a subject open to inquiry, and contain copies of the pleadings, or at least may be attacked in a collateral proceeding. allegations showing that the judgment de Grover, etc., Mach, Co. v. Radcliffe, 137 U. clared on was responsive to the issues. The S. 287, 11 Sup. Ct. 92, 34 L. Ed. 670; Thorcomplaint now under consideration shows mann v. Frame, 176 U. S. 350, 20 Sup. Ct. that in an action commenced by appellees 446, 44 L. Ed. 500; Pennoyer v. Neff, 95 U. against appellant in the circuit court or S. 714, 24 L. Ed. 565; American, etc., Ins. Manitowoc county, Wis., appellant entered a Co. v. Mason, 159 Ind. 15, 64 N. E. 525; Long full appearance, and upon a trial of that v. Ruch, 148 Ind. 74, 47 N. E. 156; Runner cause the judgment herein sued on
V. Scott, supra; Gates v. Newman, supra. rendered, and that the Wisconsin court is a The Wisconsin judgment is fair on its face. court of general jurisdiction. Upon the and the burden of showing a want of jurisauthority of Gates v. Newman, 18 Ind. App. diction in the court rendering it was upon 392, 46 N. E. 654, the complaint in the case appellant. By his affirmative paragraph of at bar is sufficient to require an answer. answer to the complaint herein he challenges
The second and only other error assigned the validity of the judgment in suit upon the by appellant is the overruling of his motion theory that no pleading or issue before the for a new trial. Considering the reasons as Wisconsin court authorized a personal judg
ment against him, and therefore the finding and judgment of the court in that respect was not only irregular, but coram non judice and void. The settled law in this state is that a "judgment is conclusive upon all questions which were or might have been litigated and determined within the issues before the court." Maynard v. Waidlich, 156 Ind. 562, 570, 60 N. E. 318, and cases cited. But, where the judgment is not responsive to the issues and not the adjudication of a subject included in them, it will be considered irregular and void. McFadden v. Ross, 108 Ind. 512, 8 N. E. 161, and cases cited; Hutts v. Martin, 134 Ind. 587, 33 N. E. 676; Whitney v. Marshall, 138 Ind. 472, 37 N. E. 964; Bremmerman v. Jennings, 101 Ind. 253, 257; Reynolds v. Stockton, 140 U. S. 254, 11 Sup. Ct. 773, 35 L. Ed. 464; Pray v. Hegeman, 98 N. Y. 358.
Appellant introduced in evidence a transcript of all the pleadings, proceedings, and judgment in the Wisconsin court. From this transcript we learn that on June 22, 1903, appellees commenced a suit in equity in the circuit court of Manitowoc county, Wis., wherein appellant and others were defendants. The complaint alleges, in substance, that a certain firm of lawyers, residents of Manitowoc county and parties to the action, have in their possession, as agents of the firm of which appellant was a member, three notes of $1,000 each; that appellees' signatures were obtained to said notes through false and fraudulent representations made to them separately and individually by appellant's agent, one O'Connell, and upon an agreement with O'Connell that said notes would not be delivered to his principal and have validity until each had been signed by all the parties subscribing for stock in a company being formed for the purpose of purchasing a stallion, property of appellant's firm, and then in the possession of said O'Connell, as their agent; that unless said notes were signed by all the parties aforesaid they were to be returned to the subscribers and destroyed; that a number of the subscribers for stock in said proposed horse company refused to sign, and never did sign, said notes; that on March 5, 1903, O'Connell delivered said stallion to one of appellees, to be held by him for all who had subscribed for stock, and upon condition that all who had subscribed for stock should join in the execution of said notes; that said O'Connell, contrary to the agreement and conditions upon which appellees signed said notes, delivered the same to his principal, who took possession thereof, and who, on and after March 6, 1903, claimed to be the owner and holder thereof; and that the same were legal and valid claims against appellees, and were attempts to sell and negotiate the same to innocent third persons, so as to cut off, if possible, appellees' defense thereto. The complaint also contains allegations relative to said agent's representations as to
said horse being sound and free from disease at the time he was delivered to appellee, and as to his unsoundness and diseased condition at that time, and as to certain subscriptions for stock being fraudulent, which were by said agent represented to be bona fide, also allegations relative to appellees' demand upon appellant for the return of said notes and their offer to surrender said stallion, and claiming expense for his keep, and closes with the following prayer: (1) That said firm of attorneys, naming them, also the members of appellant's firm, "be each perpetually restrained and enjoined from selling, negotiating, or otherwise transferring the said notes, or any one of them. (2) That said notes, and each of them, be surrendered into court and canceled. (3) That a temporary
a temporary injunction be issued, , restraining and enjoining the said defendants
from selling, negotiating, transferring, or parting with the possession of said notes, or any of them, during the pendency of this action, and until the further order of court. (4) For their damages in the sum of $300, and for the costs and disburseinents of this action. (5) For such other and further order, judgment, and relief as the court, upon the proof, may deem just and equitable." Said firm of lawyers answered by admitting that they were in possession of said notes; that they had received the same from the Citizens' National Bank of Attica, Ind., through the Manitowoc Savings Bank of Manitowoc, Wis.; that they have no interest in said action and are willing and ready to deliver the notes to whoever may be entitled to the same. This transcript further shows that one Alvin P. Nave and the Citizens National Bank of Attica, Ind., were admitted as parties defendant to that action, and each filed a separate answer showing that, prior to the commencement of the action, and in the due course of business, and for value, said notes had been transferred by appellant's company to Nave, and by Nave to said bank, and that said bank was then entitled to the possession of the same. The transcript also shows that appellant answered the complaint, admitting that he and others were partners, doing business at Westfield, Ind., at the time appellees' alleged cause of action accrued, bus that subsequent thereto, on October 7, 1903, said partnership was dissolved; that he had possession of all the partnership property for the purpose of closing up its affairs. Said answer further shows that said partnership, through their agent and servant, O'Connell, in the spring of 1903, desiring to sell one of their stallions, solicited and obtained from persons, including all of appellees, subscriptions for 30 shares or interests in said horse, when purchased at $100 per share; that by said subscription each and every subscriber thereto promised, on the delivery of said horse to the company then forming, to pay the purchase price therefor by execut