Dissenting Opinion.
Henley, J. —The complaint in this ease,' omitting the formal parts, is in the following words: “Addison H. Nor-dyke, plaintiff, for a cause of action against Charles N. Mc-Creery,' defendant, says that, heretofore, on and between the 26th day of September, 1895, and the 11th day of March, 1896, the defendant, as agent and employe of the plaintiff, received of and from plaintiff goods, wares, and merchandise of the value of $2,200 to be sold by defendant for plaintiff and accounted for to plaintiff at the sum and price of $1,804.11; that the defendant sold and accounted to plaintiff for said merchandise in the sum and amount of $1,539.16; that a bill of particulars of said goods and credits marked Exhibit A is filed herewith; that the rest and residue of said merchandise, and the proceeds arising from the sale thereof, of the value of $300, the defendant, unlawfully converted to his own use, and embezzled, to the damage of plaintiff .in the .sum of $500, whereby plaintiff demands judgment for $500 and all proper relief.”
The complaint is attacked for the first time upon appeal, by the assignment of erro# that the complaint does not state facts sufficient to constitute a cause of action. It will be observed that the complaint is for conversion. It is the recognized law of this State that- the complaint, to withstand a demurrer for want of sufficient facts in an action for conversion, must allege that the plaintiff is the owner of the property or entitled to its possession at the time it is converted. -These are material averments which are absolutely necessary to be alleged and proved in order to maintain the action. Day v. Watts, 92 Tnd. 442; Ryan v. Hurley, 119 Ind. 115; Kidder v. Biddle, 13 Ind. App. 653; Easter v. *638Fleming, 78 Ind. 116. We think the rule is thoroughly-established in this court that, where a complaint is attacked for the first time on appeal, the assignment will’ be available if it appears that a material avermfent has been omitted from the complaint. Western Assurance Co. v. Koontz, 17 Ind. App. 54; Dickey v. Kalfsbeck, 20 Ind. App. 290; Bertha v. Sparks, 19 Ind. App. 431; Metropolitan Ins. Co. v. McCormick, 19 Ind. App. 49; Dotson v. Dotson, 13 Ind. App. 436; Harter v. Parsons, 14 Ind. App. 331; Town of Ladoga v. Linn, 9 Ind. App. 15; Mansur v. Streight, 103 Ind. 358; Cox v. Hunter, 79 Ind. 590; Elliott’s App. Proc.§472. It is also the law in this State that when the complaint is sufficient to bar another action for the same cause, and it is questioned for the first time upon appeal, it will be held good. These decisions. are not conflicting. . A complaint which wholly fails to aver some material fact would not be sufficient to bar another action for the same cause. On account of the failure of the complaint in this cause to allege either ownership or right of possession in the plaintiff in the goods alleged to have been converted, I think the complaint should be held bad, and the case reversed for that reason.