Conklin v. Thurston

| Ind. | May 15, 1862

Per Curiam.

This was a proceeding by Conklin, who was the plaintiff, to enjoin one Joseph Stedham, the sheriff of Wayne county, from selling the plaintiff’s property on execution. The facts alleged in the complaint are, substantially, these: Leonidas Thurston, Isaac Thurston, Alexander Thurs-ton and Theodore Shotwell, on the 6th of July, 1855, recovered a judgment, in the Wayne Common Pleas, against Conklin, for 887 dollars. This judgment was taken by one Lafe Levelin, then, and now, the acting attorney at law for the judgment plaintiffs. These plaintiffs, together with said sheriff and attorney, are made defendants to this proceeding. It is averred that since the rendition of the judgment Conklin has paid thereon to Levelin, as such attorney, 720 dollars, but Develin has only given him, Conklin, credit for 520 dollars, and has caused an execution to be issued for 867 dollars, of principal in addition to interest, which execution is now in the hands of the sheriff’, who has levied the same on the property of the plaintiff, Conklin, which will be sold on the 11th of June, 1859, unless relief is granted, &c. He, therefore, prays that the sheriff be enjoined from proceeding to make on said execution more than 167 dollars principal, that being the sum really due, &c.

N. II. Johnson, for the appellant.

Develin, one of the defendants, demurred to the complaint, on two grounds: 1. That he should not have been joined as a party. 2. That the complaint, as to him, does not state facts sufficient to constitute a cause of action. The Court sustained the demurrer; and, we think, correctly. As no judgment, in any form, could have been rendered against Develin in the proceeding, he was not a necessary, nor even a proper, party.

The issues were submitted to the Court who found for the defendants, and rendered a judgment refusing the injunction. We perceive no error in the record.

The judgment is affirmed, with costs.