188 Ind. 484 | Ind. | 1919
— This was a suit brought by appellee Hammond on January 13, 1911, in the Crawford Circuit Court against appellant Luckett, and one Funk, then sheriff of CrawfordT county, to enjoin the latter from selling certain pieces of real estate in that county on the ground that they were not subject to levy and sale on execution. Steps additional necessary to secure the issuing of a restraining order were not taken, and on January 14, 1911, the sale was had and the property sold to Luckett, who was the judgment creditor. Thereafter from time to time various amended and additional paragraphs of complaint'were filed by both Hammond and McCoy, the latter having been admitted as a party plaintiff on March 25,1911. This cause was tried on the issues formed by appellant’s answer in two paragraphs to an amended and supplemental first paragraph
11. Appellant also insists that-this paragraph counts upon a new and different cause of action from that stated in either paragraph of the original complaint. From what we have said, it is evident that in our view his' position is untenable. For the cause of ac
Appellant has assigned many specifications in' support of his motion for a new trial, but upon the theory that the decision of the court and judgment rests 6n the sixth paragraph it will serve no good purpose to give attention to the reasons offered which have reference to the first paragraph. > By eliminating the immaterial specifications we still have before us the contention of insufficient evidence.
We have taken the time to examine the evidence as it appears in the record, and, while it is not as convincing in appellees’ behalf as they would have us believe, yet, when it is considered with a view of no evidence to support the material allegations of the sixth paragraph, a question is presented which we cannot affirm. When the evidence is considered as to the value of McCoy’s property on the day he sold the lots to Thomas and 'thereafter down to the day of trial in connection with the rights of his wife in his property as affected by a sale on. execution (Isgrigg v. Pauley [1897], 148 Ind. 436, 439, 47 N. E. 821; Currier v. Elliott [1895], 141 Ind. 394, 405, 39 N. E. 554), we are not prepared to say that there is no evidence to support the decision of the court.
We have no reason to believe the trial was unfair, and the judgment is affirmed.
Note. — Reported in 124 N. E. 675. Execution: purchaser at sale as purchaser pendente lite, Ann. Cas. 1918C 66; injunction against sale, Ann. Cas. 1918C 152. See under (3) 17 Cyc 1284; (4) 18 Cyc 1474; (7, 9) 17 Cyc 1283.