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51 Ind. 169

Wiler v. Manley

Indiana Supreme Court

Decided November 15, 1875

Indiana Supreme Court · decided 1875-11-15

<p>Replevin. — Special Property in Officer. — It is a good defence to an action for the recovery of the possession of personal property, that it has been taken by the defendant by virtue of a writ of attachment in his hands as. sheriff against the property of a person not a party, who is the owner. Same.. — Instruction to Jury. — Evidence.—Admissions of Seller after Sale. — • Fraud. — When, in such an action of replevin, declarations of the plaintiff’s vendor, the attachment defendant, made after the sale, were introduced in evidence without proper objection and exception, it was not error to instruct the jury that such evidence might be considered by them in determining the validity and good faith of said sale, if they found that there was a conspiracy between the plaintiff and his vendor to defraud the creditors of the latter.</p> <p>Instruction to Jury. — At Request of Party.' — -In such case, if the plaintiff desired that the court should explain to the jury what was meant by a conspiracy to defraud creditors, he should have submitted to the court an additional instruction on that point to be given to the jury.</p> <p>Practice. — Exception.—Without an exception to a ruling in admitting evidence over objection, no question upon such ruling can be presented to the Supreme Court.</p> <p>Bill of Exceptions. — Objection to Evidence. — Where the ground of an objection to evidence admitted is not shown by bill of exceptions, no question with reference to the overruling of the objection can be presented to the Supreme Court.</p> <p>Same. — Statements in Motion for New Trial. — The statement, in a motion for a new trial, of an objection made to evidence admitted or of an exception taken to a ruling admitting evidence over objection, cannot 'be taken as true, though such motion be contained in a bill of exceptions.</p>

Relies on Hopkins v. Greensburg, Knightstown, & Clarksburg Turnpike Co.

Good law ✅— No negative treatment on recordhow we know

Decided 1875-11-15

How this case has been cited

Cited by 7 later decisions — most recently April 1914

7 state decisions

5018751880189019001910decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1*172On petition for a rehearing.

Downey, J.

¶2A petition for a rehearing has been filed in this case in which counsel for appellant express the belief that counsel for appellee has misapprehended the state of the record, and that he has misled the court upon the question as to the failure to except to the ruling of the court in admitting the evidence of declarations of Jacob Wiler, and with reference to the failure to point out any objection» to the admissibility of the letter written by Jacob Wiler. Upon examination of the petition and the parts of the record to which our attention is called, we find that the statements relied upon by counsel for appellant to show that an exception was taken to the admission of the parol evidence, and an objection pointed out to the reading of the letter in evidence, are found in the motion for a new trial. It seems almost unnecessary to say that the statements in the motion for a new trial cannot perform this office. The fact that the motion for a neAV trial is contained in a bill of exceptions cannot change the rule. The-motion for a new trial is properly a part of the record, but its statements cannot supply the facts Avhich should appear in the bill of exceptions. Restatements cannot be taken as true like those of the bill of exceptions. Hopkins v. The Greensburg, etc., Turnpike Co., 46 Ind. 187.

¶3The petition is overruled.

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