25 Ind. 336 | Ind. | 1865
This is a proceeding by Knisely, Stout and Kellogg, judgment creditors of Richie, against Richie, Akin, McKnight, Webber and Crawford, under the statute regulating “proceedings supplementary to execution/*- 2 G. & EL, p. 260, et seq: The complaint averred that Akin had certain choses in action in his possession which belonged to Richie; that the appellants, McKnight and Webber, were indebted to Richie in the sum of $1,200, on account of certain notes executed by them to him. The defendants answered under oath, and Richie and Akin answered interrogatories put to them by the plaintiffs.
The cause was submitted to the court for trial; the evidence was heard; the court found the amounts due the plaintiffs from Richie on the judgment set forth in the complaint, appointed a receiver, and ordered Akin to deliver to
The evidence is in the record. The notes of the appellants to Richie were payable at a' chartered bank in this State, and are by statute- commercial paper, governed by the law merchant. Before the commencement of these proceedings the notes had been assigned to different firms in payment of pre-existing debts due from Richie to them. A motion is made by the appellees to dismiss the appeal, on .the ground that there is no judgment, final or interlocutory, from which an appeal can, under the statute, betaken:.
The statute provides that “ appeals to the StqDreme Court may be taken from an interlocutory order of any Court of Common Pleas or Circuit Court-, or judge thereof, in the following cases: 1st. Eor the payment of money;- to compel the execution of any instrument of writing,- or the delivery or assignment of any securities, evidences of debt; documents or things in action.” 2 G. & H., § 576;- p„ 277. It is contended that the words “for the payment of money,” mean the payment from one party to- a suit to another; that they do not embrace orders for the payment of money into court. This is not a fair construction of the clause under consideration. This is a reme-' dial statute and must be liberally construed. The evils intended to be remedied were, that the - defendants were often compelled to part with their money under erroneous-’ interlocutory orders of the Common Pleas and Circuit Courts, and were subjected to the inconvenience of having it tied up to await the slow process of a long litigation',.
As the statute does not authorize the making of the holders of the paper parties to the action, it would follow that they could at any time demand payment of McKnight and Webber, and that the latter could not protect themselves by the order of the court in a case in which the former were not parties and could not be made parties. There is nothing in the pleadings or proofs tending to show that the assignments of these notes were fraudulent.
The judgment of the court below ordering the payment , of the money due from McKnight and Webber on their notes, into court, is reversed, with costs, and the cause remanded to said court for further proceedings in accordance with this opinion.