176 Ind. 526 | Ind. | 1911
This proceeding was brought by appellants, creditors of Harry J. Smith, to prevent his assignee, Ebenezer C. Olds, from setting off to said Smith — who was when said assignment was made and when this proceeding was brought a resident householder of the State of Indiana —personal property of the value -of $600, under the provisions of §§745, 3314 Burns 1908, §§703, 2670 E. S. 1881.
A trial of said proceeding resulted in a special finding, with conclusions of law, and judgment thereon against appellants. The only error assigned calls in question the conclusions of law.
The special findings necessary to the determination of this case are, substantially, as follows: For some time prior to October, 1910, Harry J. Smith and Joseph LeG-ross as copartners, conducted a store for the sale of boots, shoes and other merchandise in Eoanoke, Huntington county, Indiana. They shared the profits equally. LeGross invested
The court stated as conclusions, that upon the facts found the law Avas with said Smith, that said transaction is not governed by the act of 1909, supra, that the sale was and is valid, that he is entitled to an exemption of $600 out of the funds realized from the sale by the assignee, and the assignee is directed to pay said amount to him.
Appellants claim that on account of the failure of LeGross
Appellees insist that the act of 1909, supra, is in violation of the Constitution of this State (Wright v. Hart [1905], 182 N. Y. 330, 75 N. E. 404, 2 L. R. A. [N. S.] 338; Charles J. Off & Co. v. Morehead [1908], 235 Ill. 40, 85 N. E. 264, 20 L. R. A. [N. S.] 167, 126 Am. St. 184; Block v. Schwartz [1904], 27 Utah 387, 76 Pac. 22, 65 L. R. A. 308, 101 Am. St. 971); that even if it be held constitutional, it is in derogation of the common law, and is to be strictly construed; and that when so construed it does not apply to a sale by one partner to another of his interest in the partnership property.
Said act provides that “the sale, transfer or assignment, in bulk, of any part or the whole of a stock of merchandise, or merchandise and the fixtures pertaining to the conducting of said business, otherwise than in the ordinary course of trade and in the regular prosecution of the business of the seller, transferor, or assignor, shall be void as against the creditors of the seller, transferor, assignor, unless,” etc. It is clear that a sale by a partner of his interest in “a stock
It is true that §2 of said act provides that “sellers * * * and assignors * * * shall include * * * copartnerships,” but there was no “sale in bulk” bv a copartnership or to a copartnership.
No question was made in the court below as to the right of said Smith to an exemption if said law was unconstitutional, or if it did not apply to said sale by LeGross to
Having considered all the questions presented, and finding no error, the judgment is affirmed.