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Greenewald v. Rathfon.

$1,000 damages, a dissolution of the partnership, a surrender of the notes and mortgage for cancellation, an allowance for rent of the premises since September 4th, 1877, and that a receiver be appointed to settle and wind up the concern.

This paragraph seeks alone to recover damages for the fraud, treating the contract and partnership as valid, and seeks to enforce them by having the partnership wound up and settled by a receiver.

The second paragraph of the complaint alleges the contract, partnership and fraud in a very similar manner to the first, and concludes by praying for judgment, “ that the contract of partnership be declared null and void ; that the defendant be compelled to surrender for cancellation said notes and mortgage, and be enjoined from transferring the same; and that he recover back the money paid, laid out and expended by him, with interest thereon, in all amounting to the sum of $1,200, and for all proper relief.”

This paragraph may be considered as in harmony with appellee's theory of the object of the action. The appellant answered generally in denial, and the notes and mortgage as set-offs, and by way of cross complaint.

We must, therefore, look to the verdict and judgment to determine upon which paragraph of the complaint the plaintiff succeeded. The verdict reads as follows:

“We, the jury, find for the plaintiff, and assess his damages at ($979.90) nine hundred and seventy-nine dollars and ninety cents; and we do further find that the notes and mortgage executed by plaintiff to defendant, bearing date May 15th, 1877, and June 5th, 1877, and described in the complaint and cross complaint, should be surrendered and cancelled.”

The court rendered the following judgment: “It is therefore considered and adjudged by the court, that the plaintiff do have and recover of and from the said defentant, Henry Greenewald, the sum of nine hundred and seventy-nine dollars and ninety cents, so assessed by the jury aforesaid, together

Greenewald r. Rathfon.

with his costs and charges herein accrued and to accrue; and it is further ordered and adjudged by the court, that the notes and mortgage described in plaintiff's complaint be declared cancelled, and that the partnership between the parties be dissolved.

This verdict of the jury and the judgment of the court follow the prayer of the first paragraph of the complaint, and not the second. We must therefore conclude that the cause was tried, and a result reached, upon the theory of the first paragraph, and not of the second paragraph of the complaint. The verdict treats the contract as in force by giving damages for the fraud and cancelling the notes and mortgage, and the judgment, in addition, treats the partnership as in existence, by declaring it dissolved.

Appellee had agreed to pay $1,281 for half of the concern in which they formed a partnership; he had paid $900, and given his notes and mortgage for the remainder. He avers in his complaint that the whole partnership property was not worth more than $1,600, and testified to the same on the trial. This judgment does not dispose of the partnership property, but leaves that as it stood before the commencement of this action. The judgment, instead of giving to appellee his damages on account of the alleged fraud, which would be the difference between what he agreed to give for the property, and what it was worth, gives to him all that he had paid, with interest, and cancels the addition that he had agreed to pay, and leaves the property purchased still belonging to him.

We think there can be no doubt about the amount of damages in this case being excessive.

There was no error in the original opinion and decision in this case.

The petition for a rehearing ought to be overruled.

PER CURIAM.-It is therefore ordered, upon the foregoing opinion, that the petition for a rehearing be and the same is in all things overruled, at appellee's costs.

Boesker et al. v. Pickett.

No. 9340.

81 534 134 528

81 554 146 594

BOESKER ET AL. 0. PICKETT.

EXECUTION.- Eremption.--Diligence.-Exemption of property from sale on

execution is a right to be asserted at the time and in the manner provided by law, and by a person showing himself within the statute cre

ating it, or it is lost. SAME.- Action for Possession.— Evidence.-In an action against an officer

for property claimed as exempt, evidence that a schedule containing a description of the property was presented to him and a demand made to set it apart, and his return showing its seizure, make a prima facie

case.

SAME.--Offering Different Schedules.--Whether one claiming exemption has

offered schedules not containing the property claimed in the last, is a question of fact for the court or jury trying the issue, and at most he

has the burden of explaining his acts. SAME.-Sale and Rescission.-- Fraud. --Supreme Court.--That property claimed

as exempt has been sold and regained by a rescission, does not deprive the owner of his privilege, and where the sale is found by the trial court to have been without fraud and rescinded, the Supreme Court can not

say that its finding was not fully supported by the evidence. PLEADING.—Specific Allegations of Title Control.--Where a pleading con

tains both general and specific allegations of title, the specific control,
and, if they show no title, they will not be aided on demurrer by the
general allegations and the conclusion.
SAME.- Value.-An allegation, that “Said property does not exceed in

value the sum of $600,” sufficiently shows the value of the property
claimed as exempt.
From the Wayne Circuit Court.
C. B. Walker and J. E. Graham, for appellants.
W. A. Peelle and D. W. Comstock, for appellee.

ELLIOTT, J.—The appellee sought and obtained a judgment for personal property claimed by him to be exempt from execution.

The questions first presented are those arising upon the ruling on the appellants’ demurrer to the complaint.

It is said that, as to one of the appellants, the complaint does not even profess to state a cause of action, and does no more than name him as one of the defendants.

Treating the demurrer as a separate one, and not as joint,

Boesker et al. v. Pickett.

although it is doubtful whether this can be properly done, we shall dispose of the question argued. The allegation is that the defendants wrongfully have possession of the appellee's property, and that the“ defendants” refused to have the property appraised and set apart to the plaintiff. The use of the plural noun “ defendants” applies the cause of action stated not to some, but to all, of the defendants. Where a complaint names several defendants and charges them all with having unlawful possession of the plaintiff's property, it can not be justly said that it alleges a cause of action against part of them only. The demurrer admits the alleged wrongful seizure and detention to be by all, and not by a part, of the defendants. It may

be that there is some uncertainty in the allegations of the complaint as to the appellant Seaman, but, if so, the remedy is not by demurrer, but by motion. It is seldom that uncertainty is cause of demurrer.

The real question upon the complaint is whether it states a cause of action against any of the appellants.

Where a complaint contains a general allegation of title, followed by a specific statement of the facts constituting title, the latter must control. If the specific statement shows that the plaintiff has in fact no title, the general allegation is broken down. If the rule were otherwise, it might often happen that the pleader's conclusion that he possessed title would prevail, although the facts showed him to have none. Reynolds v. Copeland, 71 Ind. 422; Heavilon v. Farmers Bank, etc., ante, p. 249.

Whether the appellee's complaint shows title to the property claimed, depends upon the facts stated as constituting it, and whether the facts show title depends upon whether they show a right to have the property claimed exempted from seizure upon execution. The right to exempt property must be asserted at the time and in the manner provided by law. It is a privilege which the debtor may lose by a failure to pursue the course prescribed by the statute which bestows the right. The State, ex rel., v. Melogue, 9 Ind. 196; Zielke v.

Boesker et al. v. Pickett.

Morgan, 50 Wis. 560; Russell v. Lennon, 39 Wis. 570; Pond v. Kimball, 101 Mass. 105. The person who asserts the right must show himself to be within the statute creating the exemption.

The contention of appellants is that the complaint fails to allege that the appellee's inventories, tendered to the officers holding the writs, contained all the property of which he was the owner. The position rests upon a mistaken view of the complaint. It does allege that the schedules contained a full and true exhibit of all the property of which he was the owner, or in which he had any interest. It appears, also, that the value of the property claimed as exempt did not exceed $600, the amount allowed by law. The appellants are also in error in supposing that the complaint does not state the value of the property. It is alleged, somewhat awkwardly it is true, " said property does not exceed in value the sum of $600.” The allegation, detached though it is, and not very well placed in the pleading, is still sufficient to show the value of the

property claimed.

It is said that there is no evidence at all justifying a finding against the appellant Seaman. We think otherwise. It appears that he levied an execution upon the personal property, that a schedule was presented to him, and a demand made to set apart the property. The return shows the seizure of the property, and this was sufficient evidence against Seaman, who, it appears, was the officer into whose hands the writ came.

The return of an officer is sufficient evidence of seizure, to make at least a prima facie case. We need not enquire as to its conclusiveness.

It was proved that sometime before the last schedules were presented, the debtor had offered others in which the property involved in this action was not described. The fact, that the appellee presented schedules different from those now relied on, does not preclude him from securing his just exemption. The fact was one for the consideration of the court trying the cause, and should have its due weight upon the question

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