84 Ind. 516 | Ind. | 1882
On the 6th day of January, 1880, one of the appellees, Michael McCann, filed his complaint against the Ford Plate Glass Company, and on the 6th of the following month filed his affidavit and undertaking and obtained a writ of attachment. To this complaint and affidavit the glass company filed an answer in denial. On the 30th of June of the same year the cause was submitted to a jury for trial, which resulted in a verdict for the attaching creditor on the 2d day of July; and on that day the glass company filed a motion for a new trial, which was then overruled and a judgment entered upon the verdict, and an order for the sale of the attached property made. On the same day — July 2d— the Lexington and Big Sandy Railroad Company filed complaint, affidavit and undertaking for an attachment, and these were endorsed, “Filed July 2d, 1880, with suit and attachment proceedings of Michael McCann v. Ford Plate Glass Company.” This endorsement is signed by the clerk and attorneys of the railroad company. At various times after-wards the other appellants filed complaints, affidavits and bonds as follows: July 3d, Jacob Fry; July 5th, Samuel Wing and Thomas Evans. On the 17th of that month the original attachment plaintiff, McCann, moved to take the railroad
It is a general rule that where the decision of a trial court is made upon facts within its own knowledge and growing out of transactions in court, appellate courts will not allow it to be brought in question. We do not deem it necessary, however, to decide this case upon that rule, nor to enquire as to its soundness. There is another view which requires us to refuse to disturb ¿he finding that the appellants did not file their claims until after judgment in McCann’s favor in the original action. Where there is a conflict of evidence, whether embodied in affidavits or contained in the testimony of witnesses, the finding of the court will not be disturbed if the
We are, therefore, to regard the question, whether any of the appellants filed their claims before the rendition of the judgment in favor of McCann, as settled. If the appellants have a right to reversal, it must be upon some other ground than that their claims were filed before the judgment in the original case was rendered.
At the time the appellants filed their claims there were two cases pending, which had been filed under McCann’s proceeding and before he had recovered judgment. If the pendency of these two actions is to be considered as keeping the matter open, and thus postponing a final judgment, or as the statute designates it a “ final adjustment,” the appellants must prevail; if, on the other hand, the judgment in the original action finally closed the entire matter, then the appellees are entitled to an affirmance.
We held in Cooper v. Metzger, 74 Ind. 544, that where a judgment was entered disposing of all pending claims, it was a “final adjustment” within the meaning of the statute, and that after its rendition no creditors could come in under the attachment. But the case before us presents a very different question; for the judgment in McCann’s favor did not dispose of pending claims which were then component parts of the proceedings against the property; while,in the case cited, all pending claims were disposed of by the judgment and order of sale.-
Where a fund or property is within the control of a court and in. the hands of its officers, the rights of claimants are not, as a general rule, barred until there has been a judicial determination of the rights of all who have claims pending before the court. If this rule is -applicable here, it settles the case against the appellees. There is nothing in Cooper v. Metzger, supra, which conflicts with this general rule. In that case, as the, opinion shows, a controlling consideration was “ that this judgment included all the claims that had been filed.”
The final adjustment meant by the statute is the adjudication upon all the claimspending at the time it is made. The judgment upon one claim, even though it is upon the one first sued on, does not finally adjust the rights of the parties that are then before the court. It was held in Taylor v. Elliott, ■51 Ind. 375, that the dismissal of the original proceeding does not impair other proceedings then pending. So, in United Express Co. v. Lucas, 36 Ind. 361, and Lytle v. Lytle, 37 Ind. 281, it was held that one creditor may contest the claims of ■others. Dronillard v. Whistler, 29 Ind. 552, decides that the sheriff is authorized to sell only so much property as will satisfy the judgment; and Harlow v. Becktle, 1 Blackf. 237, decides that the authority of the officer to sell is confined to the property described in thé order of sale. The contention of the appellees that the judgment in the original action finally .settled the matter is in conflict with the three cases first cited; for, if the contention should prevail, we must hold that the •decision in the original action decides the fate of all, and this would, in effect, be the reverse of what is held by the cases cited. The contention is in conflict with the two cases last cited, for, unless the court knows the aggregate of all the pending claims, it can not make an order of sale which will properly guide the sheriff as to the quantity of property to be sold. The reasoning in Cooper v. Metzger, supra, is applicable here. It was there said: “ If claims are allowed to be filed after the •order of sale, or, as the appellee insists, before the final ad
We are satisfied that the court erred in refusing to permit appellants to proceed under the attachment sued out by Mc-Cann.
Judgment reversed.