22 Ind. 139 | Ind. | 1864
The appellees sued the appellant on a note.
The latter branch of the case is attempted to be brought here, and errors are assigned affecting the correctness of the verdict in view of the evidence, and of the instructions given to the jury. In Foster v. Dryfus, 16 Ind. 158, it was stated that,“where an issue is formed on the affidavit, it should be tried by the Court or jury, with the issues in the cause in which the attachment issued.” To the same effect is the case of Bradley v. The Bank, &c., 20 Ind. 531, and in which it was further held that, “the issues on the attachment were properly made up for trial, at the time of the trial of the merits of the cause of action, and hence we must hold that they were then tried.” Preliminary to an examination of the points presented we must determine whether the appellant is, under these decisions, in a position to avail himself of any errors that may have been committed in the progress of this second trial, even if such had occurred.
We are of opinion that he is. The record clearly shows that the trial before the Court was “on the note.” Whether, if the defendant had interposed any objection, a further trial “as to the attachment” could have been had, we need not determine, as no such objection was made. Indeed, so far as the record shows, the separate trials thus had appear to have
-The following- charges were given by the Court, at the request of the plaintiffs:
1. The only point or issue in this case is whether or not Maple, before the issuing of the attachment, had sold, conveyed or otherwise disposed of any of his property, or suffered it to be done, with the intent to cheat, hinder or delay any of his creditors; if he had, you must find for the plaintiffs. . 0
2. It makes no difference in this case what the intention or object of Fletcher and Gullurn was in taking the mortgage— even if it was honest—and Maple had the fraudulent intent above named, you must find for the plaintiffs.
The real question was between the attachment creditors and these mortgagees, if it had been so shaped in the pleadings as to present that question for trial.' But the pleadings upon the part of the defendant were, as to the main action, a denial, payment and set-of; and as to the auxiliary proceedings, a denial of the causes alleged in the. affidavit for an attachment, which were that said Maple had “sold, conveyed and disposed of his property subject to execution with the fraudulent intent to cheat, hinder and delay his creditors.” Under this the evidence was introduced in reference to the mortgage to Fletcher and Gullurn. They do not come in, nor
The third charge was as follows :
“ 3. If after the mortgage was given, the defendant remained in possession of the property mortgaged, after the time named in it, using and trading with the property as the owner, it is- a fraud and you must find for the plaintiffs.”
It appears to us this instruction was calculated to confuse and mislead the jury to the prejudice of the defendant. They were to'ld that,if he remained in possession after the mortgage was given and after the time named in it, &c. If it was intended to say that the defendant could not hold possession after the date of the mortgage, it is certainly erroneous. If some other point of time was intended to be indi
The judgment below is reversed, with costs. Cause remanded.