85 Ind. 517 | Ind. | 1881
In this action the appellant sued the appellees upon the transcript of a judgment which he had recovered against the appellants Richard W. Donaldson and Margaret
In this court all the questions presented and discussed by appellant’s counsel, in his exhaustive brief of the case, arise under the alleged error of the trial court, in overruling the motion for a new trial. These questions relate exclusively-to so much of the general verdict as found for the appellees upon the issue joined, by their answer in denial, upon the appellant’s affidavit for an attachment and for process in garnishment, and to the judgment rendered thereon. The grounds for the attachment proceedings were stated in the appellant’s affidavit, in substance as follows: “ The said Flannagan further swears that the said Margaret Donaldson has sold, conveyed and otherwise disposed of her certain real estate to her son Isaac M. Donaldson, he, the said Isaac M., colluding with the said Margaret Donaldson, with the fraudulent intent to cheat, hinder and delay her creditors, which said real estate, so sold as aforesaid, was as follows, to wit: A lease upon a limekiln and dwelling-house adjacent, together with the premises appurtenant, situate in section 26, township 27 north, of range 2 east, in Gass county, Indiana. The said Flannagan says further, on his oath, that the said Isaac M. Donaldson, after the said fraudulent conveyance of said real estate to him
It is earnestly insisted by the appellant’s counsel, that the general verdict of the jury, finding for the appellees upon the attachment proceedings, was not sustained by sufficient evidence. If we were authorized to consider and decide this question upon what we might regard as the fair preponderance of the evidence, as the same appears in the record, it would seem to us that the counsel w'as right in this position, that the general verdict upon the attachment proceedings was not sustained by sufficient evidence, and that, for this "cause, a new trial ought to have been granted. While this is so, however, it must be conceded that there is evidence in the record tending to sustain that part of the general verdict, and to show that the said Margaret Donaldson had not sold, conveyed, or otherwise disposed of her said real property to her son Isaac M. Donaldson with a fraudulent intent, stated in appellant’s affidavit. In such cases it must be regarded as settled, that this court will not weigh the evidence, nor attempt to determine its preponderance, nor disturb the verdict of the jury, •or the finding of the trial court, upon what might appear, from the mere reading of the evidence, to be its fair, clear, or even overwhelming preponderance. Cox v. State, 49 Ind. 568; Rudolph v. Lane, 57 Ind. 115; Swales v. Southard, 64 Ind. 557; Fort Wayne, etc., R. R. Co. v. Husselman, 65 Ind. 73; Hayden v. Cretcher, 75 Ind. 108.
The court, of its own motion, instructed the jury trying the cause, as follows: “ To authorize a finding for the plaintiff upon the attachment proceedings, the plaintiff must prove, by
We are of the opinion that the court clearly erred in giving the jury the instruction quoted. It does not contain a correct statement of the law, applicable to the matters in issue on the affidavit in attachment, or to the evidence adduced upon the trial. The ground for an attachment, stated in the appellant’s affidavit, was the one provided for in the fifth clause of section 156 of the code of 1852. In this clause and section it is provided that the plaintiff, in an action for the recovery of money, at the commencement of his action, or at anytime afterwards, may have an attachment against the property of the defendant, where such defendant “has sold, conveyed or otherwise disposed of his property subject to execution, or suffered or permitted it to be sold with the fraudulent intent
If it were the fact, that, after making the conveyance to her son Isaac, the said Margaret Donaldson did retain or have left sufficient other property to pay her debts, such fact might possibly have been given in evidence by her, as tending to prove that her conveyance was not fraudulent. But, certainly, it was not necessary that the appellant should negative such fact by his evidence, in order to maintain his attachment proceedings. In this respect, the case at bar must not be confounded, as seems to have been done by the trial court, with the ordinary cases, where suits are brought to set aside conveyances as fraudulent against the grantor’s creditors, and to subject the property conveyed to the payment of the grantor’s debts. In such cases, it is well settled that the rule in re
The appellant’s counsel also complains in argument of the refusal of the trial court to give the jury certain instructions at his request. But we deem it unnecessary for us to set out or comment upon these instructions in this opinion; especially so, as the error of the court, in the instruction given of its own motion, will require the reversal of the judgment below and a new trial of the cause.
The appellant’s motion for a new trial ought to have been sustained.
The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain the motion for a new trial, and for further proceedings not inconsistent with this opinion.