McCollem v. White

23 Ind. 43 | Ind. | 1864

Perkins J.

J.—White sited McCollem to recover the amount of one item of account; viz: one car-load of hogs, sold and delivered at the price of $334, which sum, it is averred, has not been paid. A bill of particulars for one car-load of hogs, $334, accompanied the complaint. An attachment was sued out, upon an affidavit, charging the above item of indebtedness, and that the defendant was a non-resident of the state, and that he so concealed himself that a summons could not be served on him personally. Property was attached by the sheriff. Process of garnishment was obtained against Temple Beeson and Linville Ferguson. McCollem appeared to the suit by attorney, answered to the cause of action, and to the affidavit for attachment. Issues were formed. Issues were also formed on the affidavit in garnishment. The issue upon the cause of action was tried, and judgment rendered for the plaintiff, against McCollem, by consent of parties. Afterward a change of venue, as to the remainder of the cause, was taken from Fayette county, where suit was commenced, to Union county, where it was tried. No exception was taken to the change. Afterward the defendants in garnishment moved for a trial of the issues in their branch of the proceedings separately from the issue on the attachment affidavit against McCollem. This motion Avas denied; but as the proceedings were afterward dismissed as to them, and they are not a party to the appeal in this court, we need not decide on the correctness of the ruling. We will remark, however, that it strikes us the motion should have been granted. The issues were between different parties, and involved different questions from those between the plaintiff and the defendant in the original suit. Where the parties make up issues in garnishment, it seems to us they might properly be separately tried. The proceedings in garnishment having been discontinued, and no appeal having been taken from the judgment on the cause of action against McCollem, Ave have no questions to examine except those arising in the proceedings on the affidavit for attachment against McCollem. See, however, as bearing on questions which we here have not to pass upon, Maple v. Burnside et al., 22 Ind. 139; Dunn v. Crocker, ■ Id. 324.

There are but two questions necessary to he now decided, viz :

1. Was McCollem a non-resident; and, if not, did he conceal himself, etc. ?

2. Was the court justified in rendering judgment for the sale of the attached property on the special findings of the jury?

We think the jury Avere justified by the evidence in finding both that McCollem was a non-resident, and that he concealed himself, etc.

Residence is the being in a given place with the intention of making it one’s home; and the residence of the Avife and infant children follows that of the husband and father. In this case the facts are that MoCollem, being deeply involved in debt, being in fact bankrupt, and hard pressed by his creditors, left Fayette county, Indiana, about the middle of April, 1863, just on. the eve of a session of the county court; left upon false pretexts, and departed, leaving his family ignorant of the cause of his flight and the place of his destination. He had been absent at the time of the trial nearly a year; and, though he had made it known that he was in Nevada territory, there was nothing showing that he intended to return, but circumstances authorized the contrary inference. His wife had gone to her father’s, where she was remaining. On the facts in the case it might be inferred that MoCollem left Fayette county, Indiana, and located in Nevada, with the intention, still entertained, of making that territory his home.

The attachment in this case was taken a little more than two months after he left; and the jury found, as the evidence justified them in finding, that he concealed himself, etc., and that the wife and family were then unable to give the cause of his absence, and that they refused to give an account of the place where he could be found.

Thus two of the grounds authorizing the attachment were established, either one of which is made sufficient by the statute; viz: that he was a non-resident, or that he concealed himself, etc.; and, having a family, that the family could not, if concealment was relied on, give the cause of his absence. It was not necessary that they should have been unable to give the place, etc.; the statute is in the disjunctive. 2 GL & II. 138.

"We take it, a party may charge, in his affidavit, one or all of the statutory grounds for attachment; and if he sustains one of them, it will be sufficient; but if he sustains more, it. will do no harm. The remaining question is, could the court render judgment for the sale of the attached property ?

B. F. Claypool and John S. Reid, for appellant. James C. McIntosh and Bye If Harris, for appellee.

It will be remembered tbat tbe issue on tbe cause of action had.been tried, and final judgment rendered against McCollem. It may be stated tbat tbe sheriff bad made his return of a levy of tbe attachment, with a householder, etc., tbe appraisement of tbe property, etc., with , a schedule of tbe property, and tbat no motion to set aside tbe levy of tbe attachment, or for tbe release of tbe attached property, was made; nor was any issue made upon tbe legality of tbe levy. Tbe only issue being tried was upon tbe truth of tbe affidavit for tbe attachment, Special interrogatories were propounded to the jury on tbe facts under tbat issue, and they answered what covered the substance of it, as we have seen above. They were not required to answer them, provided they found a general verdict. They found no general verdict. Under tbe cases of Will v. Whitney, 15 Ind. 194; Foster v. Dryfus, 16 Ind. 158; Crassen v. Swoveland, 22 Id. 427, tbe judgment for tbe sale was properly rendered.

Mrs. McCollem was not a competent witness for her husband in tbe attachment suit.

Per Curiam.—Tbe judgment is affirmed, with costs.