40 Ind. 300 | Ind. | 1872
This was a proceeding of the appellee against the appellants, to restrain them from levying upon and selling his property to satisfy an execution issued by the mayor of the city of Kokomo, upon a judgment rendered in favor of William B. Elson and against Jacob Maas, Jetta Maas, and George L. Faulkner, and upon which judgment the appellee had become replevin bail.
The material averments in the complaint are, that William B. Elson, on the 17th day of October, 1870, recovered a judgment before and in the court of John W. Cooper, mayor of the city of Kokomo, against Jacob Maas, Jetta
The prayer of the complaint was, that William B. Elson and Charles J. Becktel, marshal, be restrained and enjoined from proceeding upon and with said execution, against the property of the plaintiff, until they have fully exhausted and disposed of all the property of the judgment defendants, and for general relief.
The defendants demurred to the complaint, upon the ground that it did not contain facts sufficient to entitle the plaintiff to the relief prayed for. The demurrer was overruled, and they excepted.
The defendants then answered in denial. There was a trial by jury, finding for plaintiff, motion for a new trial made, overruled, and excepted to, and judgment on the finding.
The appellants have assigned for error the overruling of the demurrer to the complaint, and the motion for a new trial.
Three objections are urged, by counsel for appellants, to the complaint, first, that it is not averred that the personal property of Jetta Maas and that belonging to the estate of George L. Faulkner, deceased, were situated in the county of Howard; second, that the facts stated did not make a case for injunc
There is nothing in the first objection. It was averred in the complaint that such property was subject to levy and sale upon such execution, and it could not be so subject unless it was in the county of Howard, for the marshal possessed no jurisdiction beyond the limits of the county.
We are of opinion that the second objection is untenable: It is now well settled that the chancellor will restrain the illegal sale of the property of an individual. See Strong v. Daniel, 5 Ind. 348; English v. Smock, 34 Ind. 115; Watson v. Sutherland, 5 Wal. 74; Collins v. Fraiser, 27 Ind. 477.
The third objection is placed upon the peculiar provisions of the eighty-fourth section of the act defining the civil jurisdiction of justices of the peace, which reads as follows :
“Sec. 84. In all cases where a stay of execution is not prohibited by law, the judgment defendant shall have stay of execution, by entering replevin bail on the docket of the justice, in substantially the following form:
“I, A- B-, hereby acknowledge myself replevin bail for the stay of execution, on the above judgment for - days from the rendition thereof. Witness my hand this — day of-, 18—. A. B. Test: E— F—, Justice.
“And the justice shall be responsible for the solvency of such bail at the time when taken, unless the plaintiff consent thereto; and such undertaking shall have the effect of a judgment confessed; and execution shall issue thereon at the expiration of such stay jointly against the defendant and such bail; and it shall be the duty of the justice to issue execution thereon at the expiration of the stay, unless otherwise ordered by the plaintiff” 2 G. & H. 602.
The position assumed by counsel for appellants is, that as by the above section the undertaking of a replevin bail shall
The above position, though plausible, is, in our opinion, untenable, for two reasons.
In the first place, we do not think that the fact that the undertaking of a replevin bail has the effect of a judgment confessed makes the liability of the replevin bail the same as that of the judgment defendant. When the undertaking of the replevin bail has the effect of a judgment confessed, a joint execution may issue against the judgment defendant and the replevin bail. The Revised Statutes of 1838 did not give to the undertaking of a replevin bail in a justice’s court the force of a judgment, but merely that of an obligation to pay the judgment, if it could not be made by an execution against the principal debtor, and constituted the foundation on'which a judgment against the bail might be placed upon such contingency having happened. No joint execution could then, as it can now, issue against the judgment debtor and the bail, before a justice of the peace. The remedy was by scire facias, in which it was necessary to allege and prove that an execution had been issued against the principal debtor, and had been returned “no property,” etc. In a proceeding by scire facias, the replevin bail must have notice, and was entitled to appear, and plead, and have a trial of the issues made. Burton v. McGregor, 4 Ind. 550.
Section 94 provides that the replevin bail may be discharged from liability as such. If new bail is not given, execution shall issue immediately. The 95th section provides the manner in which new bail shall be entered, and when so entered the old bail is discharged. It is provided in the 96th section, that “when a replevin bail has paid the judgment, or any part thereof, the same shall stand unsatisfied for his use, and he may have execution thereon.” 2 G. & H. 605.
It has been uniformly held by this court, as well before as since the adoption of the code, that a replevin bail was a surety only, and was entitled to all the rights and privileges of a surety. Hutchins v. Hanna, 8 Ind. 533; Nunemacher v. Ingle, 20 Ind. 135; Colgrove v. Cox, 22 Ind. 43.
In the next place, we are of opinion that section 428 of the code should apply to and govern the rights of a replevin bail before a justice of the peace.
It is provided by section 75 of the justices’ act, that “in all cases not in this act speciálly otherwise provided, proceedings before justices shall be governed by the practice and usages of circuit courts, and the rules of the common law so far as the same are in force in this State.” 2 G. & H. 600.
Sections 421, 422, 423, 424, 425, 426, and 427 of the code provide when and in what manner replevin bail may be entered. 2 G. & H. 234.
Section 428 provides, that “at the expiration of the stay, it shall be the duty of the clerk to issue a joint execution against the property of all the judgment debtors and replevin bail; but the sheriff shall first levy upon the property of the judgment defendants, if sufficient can be found; if not, he shall then, without delay, levy the execution upon the property of the bail. But no property of the bail shall be sold
There is no provision in the justices’ act specially providing that the property of the judgment debtor shall be first sold, where there is replevin bail. It is provided in said act that an undertaking of replevin bail shall have the effect of a judgment confessed; that a joint execution shall issue against the judgment debtor and replevin bail; that the replevin bail may be discharged; and that the judgment, when paid, shall remain unsatisfied for his use; thus showing that he was surety only; but there is no special provision that no property of the replevin bail shall be sold while property of the original judgment debtor subject to execution can be found in the county.
It was evidently the intention of the legislature, in adopting section 75 of the justices’ act, to remedy the evils that would result from such omitted case as the one under consideration; but section 82 of such act is broad enough to embrace a replevin bail, as he is a surety within the true meaning of such section, which provides, that “whenever it shall .appear from the docket, the justice shall note on the execution, whether any of the defendants are sureties; and if so noted, it shall be the duty of the officer executing the same, first to levy.on the goods qf the principal; and if enough of such goods can be found to satisfy the execution, no levy shall be made on the goods of the surety.” 2 G. & H. 602.
We think the court committed no error in overruling the demurrer to the complaint.
The counsel for appellants has assigned several reasons why the court erred in overruling the motion for a new trial. The first is, that the court erred in permitting Jetta Maas to testify as to the kind and value of her personal property. It is claimed that such evidence was illegal, because the execution was not issued against her, and the officer was not required to levy upon and sell her property to satisfy such
The execution was irregular and illegal, and would have constituted a valid reason to enjoin the officer from levying upon the property of the replevin bail, but this was not assigned as a reason for injunctive relief. The statute requires that the execution should issue against all of the judgment debtors and the replevin bail. It appears from the evidence that Jetta Maas was, at the time of the rendition of the judgment and of the trial, the wife of her co-defendant, Jacob Maas, but this fact constituted no reason in law why the execution should not have been issued against her, and why her property should not be levied upon and sold upon such execution. Her coverture would have constituted a valid, defence to the action upon the note, but having failed to interpose such defence before judgment, she is now conclusively estopped from doing so, and her property is as much liable to levy and sale as though she was unmarried. See McDaniel v. Carver, ante, p. 250. We think it was competent for the appellee to show that any of the judgment defendants had property subject to execution.
It is next claimed that the court erred in overruling the motion for a new trial, because the finding was not sustained by the evidence. We think this objection is well taken. It was alleged in the complaint that the marshal, who had the execution in his hands, was threatening and preparing to levy the same upon the property of the plaintiff, and that unless the said marshal was restrained therefrom, he would immediately levy upon and sell the property of the plaintiff. The above allegations were necessary to entitle the plaintiff
This is not a case of the weight or conflict of evidence, but the entire absence of any evidence to .establish a material allegation of the complaint.
For this error the judgment must be reversed.
The judgment is reversed, with costs; and the cause is remanded for a new trial, in conformity to this opinion.