31 Ind. App. 63 | Ind. Ct. App. | 1903
The Aultman Company, an Ohio corporation, sued the appellant Nathan McCardle upon, a judgment alleged to have been rendered against him on January 17, 1884, in the Ohio Circuit Court, in favor of C. Aultman & Co., and to remain due and unpaid. It is further averred that in December, 1893, in a suit against O. Aultman & Co., brought in the court of common pleas of Stark county, Ohio, defendant Lynch was appointed receiver for C. Aultman & Co.; that afterwards, appellant Doll was appointed a special commissioner, and the receiver and O. Aultman & Co. were ordered to turn over, transfer, and deliver to said commissioner, and the commissioner was ordered to sell the real estate, personal property, and all bills, choses in actions, claims, debts, dues, and demands, held by and owing to O. Aultman & Co., or in the hands of the receiver, or to which either was entitled; that on February 16, 1895, the commissioner sold all of said property to William W. Clark, and on February 26, pursuant to an order of Court, the commissioner did assign and transfer all of said property to said Clark; that the judgment sued on in this action was not assigned in the record, and was not specially mentioned, but was included in the sale and transfer to Clark; that afterward Clark sold and transferred all the property purchased from the commissioner, including the judgment sued on, to the Aultman Ce. It is also alleged that appellee is the absolute and equitable owner of the judgment; that appellants, Lynch, receiver, Doll, cemmissioner, Keeney, receiver, and C. Ault
The errors assigned and not waived are that the court erred in overruling the demurrer to the amended complaint, motion to strike out the answer of O. Aultman & Co., and motion for a new trial.
The facts stated in the amended complaint were sufficient to show that appellee was the owner of the equitable title to, and, as such owner, had a right to sue upon, the judgment. Wood v. Wallace, 24 Ind. 226; Kelley v. Love, 35 Ind. 106; Shirts v. Irons, 54 Ind. 13; Adams v. Lee, 82 Ind. 587, 589; Snell v. Maddux, 20 Ind. App. 169.
The judgment having originally beep, rendered in favor of C. Aultman & Co., they held the legal title when the present action was instituted; and it was necessary, to bind that title, that the said company, its assignees and receivers, be made parties. Nelson v. Johnson, 18 Ind. 329, 333; Chicago, etc., R. Co. v. Higgins, 150 Ind. 329; Carskaddon v. Pine, 154 Ind. 410.
The complaint, alleging the recovery of the judgment in the Ohio Circuit Court, the equitable assignment thereof
Appellee, to sustain the allegations of its complaint, introduced the judgment recovered by O. Aultman & Co. against McCardle, of record in the Ohio Circuit Court, the deed and .transfer of Doll, commissioner, to Clark, and the transfer of Clark to appellee. No evidence was introduced by appellants. The court instructed the jury that, under this evidence, appellee was entitled to recover the amount of the judgment, with six per cent, interest thereon to the time of the trial. There was no dispute about the evidence, and it was sufficient to sustain the material allegations of the complaint. No defense was made or attempted. Under such circumstances the instruction was properly given. Hazzard v. Citizens State Bank, 72 Ind. 130, and cases cited; Moore v. Baker, 4 Ind. App. 115, 117, 51 Am. St. 203.
Neither did the court err in refusing to give instructions requested by appellant. They were not applicable to the evidence. If either did the court err in refusing to strike out the answer of C. Aultman & Co. Appellant was not injured thereby. His interest could not in any way be prejudiced by such ruling. One payment of the judgment will release him from all liability to anyone. A correct result was reached. Wortman v. Minich, 28 Ind. App. 31.
Judgment affirmed.
