58 Ind. 22 | Ind. | 1877
This was a proceeding supplementary to execution, by the appellee against the appellants, in the court below.
The proceeding was commenced and prosecuted under the provisions of sections 518 and 522 of the practice act. 2 R. S. 1876, pp. 228, 231.
This is the second time the case has been before this court. "When it was first here, the opinion or decision of this court in the case was reported, under its present title, in 41 Ind. 486.
When the cause was remanded to the court below, the appellee amended his affidavit, on which the proceeding was founded, in some important particulars, and such amendments were then duly verified by the oath of the appellee.
We give a brief summary of the affidavit as amended, as follows:
It was stated therein, in substance, that one Robert L. Wilson, on August 16th, 1870, recovered a judgment in the court of common pleas of Hamilton county, against
To the appellee’s affidavit, the appellant O’Brien separately demurred, for the alleged want of sufficient facts thez’ein to constitute a cause of action, and to entitle appellee to the z-elief sought, which demurrer was overruled by the court below, and to this decision the appellant O’Bz-ien excepted.
And the appellant The Bank also demurred to appellee’s affidavit, on two grounds of objection:
1. The want of sufficient facts; and,
2. The apparent want of jurisdiction of the Bank.
’Which demurrers wez'e overruled, and the appellant The Bank excepted.
The appellant O’Brien then answered the complaint by a general denial, and the appellant The Bank answered, under the oath of its president, setting up affirmative matter, which we need not now especially notice.
The cause was then heard by the court below, and a finding made, that, at the time of the service of process herein, the appellant The Bank had on deposit to the credit of the appellant O’Bzien, and was indebted to him in, the sum of nine hundred and eighty-three dollars and thirty-five cents, which ought to be applied on the judgment of the appellee, described izz his complaint.
And the appellants’ written motion for a new trial having been overruled, and their exception saved to such decision, judgment was rendered by the .court below on its finding, requiring the appellant The Bank to pay said sum of nine hundred and eighty-three dollars and thirty-five cents on the appellee’s judgment.
It is very clear to our minds, that the finding of the court below, in this case, was not sustained by any sufficient evidence. IJpon the important question, as to whether the appellant The Merchants National Bank of Indianapolis had any money or property in its possession, or under its control, belonging to the appellant O’Brien, the only evidence offered by the appellee was the written answer of the Bank in the cause, verified by the oath of its president.
When this evidence was offered by the appellee, the appellant O’Brien objected to it, on the ground that the statement or admissions of the Bank were not competent evidence as against him; but the objection was overruled, and, over his exception, the evidence was admitted.
.It seems to us, that the coui't below erred in this decision. The ex parte statements of the Bank, though verified by the oath of its president, were not competent evidence against the appellant O’Brien. Tie had the right, or should have had, to cross-examine the president of the Bank; and very possibly he might have shown, by such cross-examination, that the money which appeared to his credit in said bank, though nominally his, was really the property of other persons. It was abundantly shown by the evidence in the record, and, indeed, on this point there was no conflict whatever in the evidence, that the money in question was really the property of some infant heirs, of whom the appellant O’Brien was then the legal guardian.
We are very clearly of the opinion, that the court below erred in its finding and judgment, that the appellant The Bank should apply the money in question to the payment of O’Brien’s personal debt.
We have no brief from the appellee in this court, and we fail to find m the record of this cause any sufficient
The judgment is reversed, at the appellee’s costs, and the cause is remanded for a new trial.