38 Ind. App. 628 | Ind. Ct. App. | 1906
This is a proceeding supplementary to execution, begun by appellee against appellant and tbe Muncie, Hartford & Ft. Wayne Eailway Company, by a duly verified complaint in one paragraph. Demurrer to tbe complaint for want of facts overruled. Denial filed, trial, and
The complaint in substance states that appellee recovered a judgment, before a justice of the peace, against appellant for less than $50; that execution wás issued and returned, “no property found;” that thereafter a transcript of the proceedings and judgment before the justice was filed in the Delaware Circuit Court; that another execution was issued to the sheriff of Delaware county, and was returned wholly unsatisfied; that appellant, Hobbs, has been, continuously since the rendition of said judgment, and now is, a resident of Delaware county, Indiana; that the Muncie, Hartford & Et. Wayne Eailway Company is indebted to appellant on account of wages earned in the sum of $40; that appellant has no other property; that appellee’s judgment before said justice of the peace is founded on appellant’s failure to pay commutation, as provided by §6825 Burns 1901, Acts 1883, p. 62, §11, and is without relief and without right of exemption; that the property of “Hobbs so in the possession of said railway company is not exempt from being applied to the satisfaction of said judgment, but cannot be reached by an ordinary execution in the hands of the sheriff.” Other allegations in the pleading tend to obscure the theory of the pleader, and render doubtful whether this proceeding is under §827 Burns 1901, §815 E. S. 1881, or §828 Burns 1901, §816 E. S. 1881, in connection with §831 Burns 1901, §819 E. S. 1881. Appellant argues that it is under §§828, 831, supra,, while appellee claims'that it is based on §§827, 831, supra.
(2) Appellant also assigns error of the court, in overruling his motion for a new trial. The reasons assigned in support of this motion are that the decision of the court is not sustained by sufficient evidence and is contrary to law. Under this assignment the questions argued are that there is no evidence to sustain the following allegations of the complaint: (1) That appellant “unjustly refuses” to apply the money sought to be reached in payment of the judgment. (2) That such money is not exempt from execution. Also that the decision of the court is contrary to law.
Finding; no error in the record, the judgment of the trial court is affirmed.