86 Ind. 131 | Ind. | 1882
This is a proceeding supplementary to execution, instituted under section 522 of the code of 1852.
The appellees, John W. Hobbs, Oliver P. Hobbs, Pliny F. Hobbs and Haney Eaton, children, and only heirs of John Plobbs, deceased, allege in their complaint, in substance, that the administrator of said decedent, on the 6th day of July, 1875, recovered a judgment for $165.30 against one Edward P. Erwin, before a justice of the peace of Marion county, in this State; that an execution issued by the justice was returned unsatisfied; that a certificate of the justice anda transcript of the judgment were filed in the clerk’s office; that an affidavit was made that the judgment was unpaid, and that an execution was issued which remains in the hands of the sheriff unsatisfied; that Benjamin Fowler and James P.Fowler, administrators of the estate of Benjamin Fowler, deceased, have in their possession a note of $1,200 belonging to said estate, the one-third of which belongs to said Erwin by virtue of an assignment made to him by the appellant, who is one of the heirs of said Fowler, deceased; that said debt, together with, other property held by said. Erwin, exceeds the amount of property exempt by law from execution, and that said judgment remains wholly unpaid.
Afterwards a supplemental complaint was filed, making the clerk of the circuit court a party, alleging that the note had been paid, and that the money was then in the hands of the clerk.
The motion in arrest, and the assignment that the complaint does not state facts, etc., present the same question, and may be • disposed of together. The complaint is said to be defective because it does not aver that Erwin, the debtor, had unjustly refused to apply this claim towards the satisfaction of the appellees’judgment, and because it does not aver that he had claimed any part of his property as exempt from execution These questions, as it seems to us, affect alone the other parties to the record, and, as they do not raise them, the record does not present them. They might waive them, as they have done by their failure to raise them, and as the appellant is not, as we think, interested in them, he can not present them. The complaint was not, for the reasons urged, insufficient, and,, therefore, these assignments of error can not be sustained.
The reasons embraced in the motion for a new trial are,, that the finding was not supported bythe evidence, and was contrary to the law. An examination of the evidence leads, us to the conclusion that this motion should have been sustained. The burthen of the issue was upon the appellees, and,, in order to entitle them to recover, it was necessary for them to prove that the appellant had assigned his interest in his father’s estate, which consisted of the note in question, to Erwin. The evidence in support of this averment was .a written assignment of such interest, made by appellant, and then in the hands of James P. Fowler, and an answer filed by
The contract seems thereafter to have been abandoned'by the parties. At least it was never consummated, and Erwin himself claims nothing under it. The evidence as to the non-delivery of the assignment was undisputed, and shows, beyond all controversy, that Erwin had no interest whatever in the claim in dispute. There was, upon this question of fact, really no conflict in the evidence. The answer of appellant is not inconsistent with the fact that the assignment had
The motion for a new trial should have been sustained, and for the' error in overruling it the judgment should be reversed.
Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment be and it is hereby in all things reversed, at the appellees’ costs, with instructions to grant a new trial.