Cooke v. Ross, 22 Ind. 157

Cooke v. Ross

22 Ind. 157 | Ind. | 1864

Davison, J.

This was a suit instituted by Boss against Cooke and BurtcJi, under the statute regulating “proceedings *158supplementary to executions.” 2 R. S. p. 260. The complaint, which is in the form of an affidavit, alleges, in substance, these facts: Boss, oh the 16th of August, 1852, recovered a judgment in the Knox Circuit Court against Cooke for 2,420 dollars, which is in full force and unpaid, and upon which an execution was issued and returned “no property,” &c. On the 15th of September, 1855, another execution issued on said judgment, was delivered to the sheriff of Knox county, and is now in his hands. Cooke, the execution defendant, has no property subject to execution, but Burtch is indebted to Cooke for money in his hands, on deposit, belonging to Cooke, to the amount of at least 1,000 dollars, which ought to be applied to the payment of said judgment, &c. This affidavit was sworn to and filed September the 15th, 1855, and on the same day a summons was duly issued and served on the defendants, Cooke and Burtch. After this, on 19th of December, 1855, the affidavit appears to have been re-sworn to.

There is a bill of exceptions which shows that Cooke filed an answer to the complaint, alleging, “that the original complaint in this case was filed on the 15th of September, 1855, and that afterwards, on the 19th of December then next following, he demurred to said complaint, which demurrer was sustained, and thereupon the plaintiff amended and filed tho complaint as amended; that before the filing of the amended complaint, to-wit: on the 24th of September, 1855, Cooke assigned and transferred the “ money in the hands of Burtch, on deposit,” as specified in the complaint, to Judah and Denny, and that said assignment was made in good faith, &c. A demurrer to this answer was sustained, and Cooke excepted. "The plaintiff’ then waived all answer of Cooke, and thereupon he, Cooke, moved for leave to file an answer and make new parties, &c.; but the Court refused leave, &c. The case was then submitted to the Court for trial, and, the evidence hav*159ing been heard, there was a finding for the plaintiff. Yew trial refused and judgment.

J. C. Denny, for the appellant.

The demurrer was well taken. Erom the time of the service of process on the defendants the plaintiff had a lien upon the claim in the hands of Burtch; Graydon v. Barlow, 15 Ind. 197, and, after that time, Cooke had no right to make the assignment. But whether the assignment was, or not, valid, was a question involving the liability of Burteh, and one which could not, properly, be raised by Cooke in his pleadings. It may be doubted whether section 522, 2 R. S., G. & H., p. 261, upon which this proceeding is based, contemplates the formation of issues as in ordinary, cases. Carpenter v. Vanscoten, 20 Ind. 50. But, be this as it may, the plaintiff had a right “ to waive the answer of the debtor,” and having done so, in this instance, the ruling of the Court upon the “motion for leave,” fee., must be sustained. Id. p. 262, § 523.

A point is made in reference to the jurisdiction. It is said that, execution having been issued against Cooke upon a judgment of the Circuit Court, the Common Pleas could not take cognizance of this proceeding. ¥e think otherwise. The affidavit may be filed and the suit commenced béfore “the clerk of any Court of record of any county.” Id. p. 261, § 519. We perceive no error in the record.

Per Curiam.

The judgment is affirmed, with costs against Cooke, the appellant, &c.