1 Ind. App. 10 | Ind. Ct. App. | 1891
The appellee Martha R. Jerauld, the plaintiff, in the court below, sued the appellants on a note made payable to Sylvester B. Jerauld, her husband, which was by him assigned to her. The appellants answered, in four paragraphs :
1st. General denial. 2d. Payment. 3d. That the note was executed without consideration. 4th. Set-off, which was a judgment rendered by the Gibson Circuit Court, on the 21st day of February, 1887, against Sylvester B. Jerauld, the payee of said note, and in favor of Martin V. Wither-spoon and others, in the sum of two hundred and sixty-eight dollars and seventy-three cents, which judgment was properly assigned to the appellant Pickrell before this suit commenced, and before said Jerauld assigned the note in suit to
1st. General denial.
2d. That on the 21st day of February, 1887, by the consideration of the Gibson Circuit Court, of Gibson county, Indiana, said MartinV.Witherspoon, and others, were plaintiffs, and Sylvester B. Jerauld was defendant, the plaintiffs in said action obtained a personal judgment against said defendant for $268.73, and costs of suit; that said judgment was rendered for and upon a debt growing out of and founded upon a contract between said judgment plaintiff and defendant for divers lots of flour, meal, bran, screenings, and other mer
The reply then shows the selection of a competent appraiser of the neighborhood of said Sylvester B. Jerauld to appraise said property, and asks that defendant be required
The appellants filed a demurrer to the reply, which was overruled and excepted to.
The case was submitted to the court for trial and both parties requested the court to make a special finding of facts and state his conclusions of law thereon. Upon the special finding of facts and the conclusions of law thereon, the court found for the appellee, Martha R. Jerauld, and upon the facts so found the court found the following conclusions of law: That the note sued on was not liable to be sold on execution of the judgment assigned to the appellant Pickrell, and the proceeds thereof could not have been reached by proceedings supplementary to execution; that the judgment can not be set off against the note in suit in appellee Martha R; Jerauld’s hands, and that the appellee, Martha R. Jerauld, was entitled to judgment against the appellants for the amount of the note, interest, costs, etc.
The appellants filed a motion for a new trial, which was overruled and excepted to, and judgment was rendered in favor of appellee Martha R. Jerauld on the special finding of facts and conclusions of law.
It is not deemed necessary to set out in this opinion, in detail, the special findings ; they are lengthy, but cover all the questions in the case and find the view of the case in favor of the appellee as presented by the pleadings. The evidence is in the record.
The appellant limits his argument for a reversal of this
That the court erred in overruling the demurrer to the second paragraph of the reply.
That the court erred in not carrying the demurrer to the second paragraph of the reply back to the complaint, and in not sustaining it to the complaint.
That the court erred in overruling the motion to strike out the petition of Sylvester B. Jerauld.
That the court erred in admitting Sylvester B. Jerauld as a party plaintiff.
If there was no error in admitting Sylvester B. Jerauld as a party plaintiff on his own petition, and in overruling the demurrer to the second paragraph of the reply, then this fact disposes of these several questions. That these questions may be clearly presented and understood we have set out in the statement of the case, substantially, the petition and reply. The inquiry becomes pertinent to know whether the petition of Sylvester B. Jerauld shows that he had such an interest in the case as to permit him to be made a party plaintiff, and the facts stated in the second paragraph of the reply were sufficient to defeat the set-off to the complaint contained in the fourth paragraph of appellants’ answer; to be more accurate and concise, could Sylvester B. Jerauld, by being made a party to this action, defeat the judgment pleaded as a set-off in the fourth paragraph, on the ground that he being a resident householder and not the owner of $600 worth of property, including the note, at the time it was assigned, was entitled to and could claim the benefits of the exemption law? Section 272, R. S. 1881, provides that “ The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others or by saving their rights; but when a complete determination of the controversy can not be had, without the presence of other parties, the court must cause them to be joined as proper parties. And when, in an action for the
It is true that Sylvester B. Jerauld had parted with his interest in the note sued on by assignment to his co-plaintiff ; he did not own or claim to own it. Still he had a right and interest with her in joining with her in the suit to have the note exempted from the judgment, which he could have had done from an execution on the judgment had he not assigned it. The said Sylvester B. Jerauld having been admitted as a party plaintiff, the next inquiry is, was the second paragraph of the reply of the appellees, which was joint, to the fourth paragraph of the appellants’ answer, sufficient ? It does not appear that an execution had been at any time issued on the judgment sought to be set off against the note sued on so as to give the debtor an opportunity to claim the benefit of the exemption laws, but that a few days before the assignment of the note the appellants procured an assignment of the judgment.
It will not be doubted that the appellee Sylvester B. Jerauld, under the facts, had a clear right to an exemption of $600 worth of property on the judgment, and had he retained ownership of the note, as without it his property did not exceed $600 in value, that he could have included the note in his property exempt, and thereby made his title to the note clear and unincumbered from the judgment or from proceedings supplementary to execution. This being true, can it be claimed that by the assignment of the note the right to exemption was defeated ? Such was not certainly the purpose and intent of the exemption law; to permit this to be done would be to take from the debtor property which the Constitution and statute declare shall be held by him for the benefit of his family. It has frequently been held by the Supreme Court that the provisions of the stat
To give effect to the evident purpose of the law, to provide against a debtor’s family being stripped of a reasonable measure of support, the courts have, with little diversity of opinion, held that one judgment can not be set off against another, where the debtor makes due and lawful claim to exempt his interest in the judgment held by ’ Tt is also held that a set-off of one judgment against another will not be allowed, unless it is equitable to allow it; that the great purpose of the law is to protect the debtor’s family, and to effect this purpose the law must be liberally construed. Junker v. Hustes, 113 Ind. 524. It is also held in the case of Barnard v. Brown, 112 Ind. 53, that where one who has the right to the benefit of the exemption law, owns property real and personal, the aggregate value of which is less than $r and sells the real estate, there being at the time judgments against him, which are liens on such real estate, he and his grantee may maintain a joint action to have the latter’s title to such real estate quieted and freed from apparent lien and incumbrance from such judgments, and the property owned at the time of such conveyance set off to him as exempt from such execution. We are unable to see any difference in principle to be distinguished between this case and those cited. The fact that the note was assigned, that execution had not issued on the judgment, and an actual claim for exemption was not made until after this suit commenced, and then made in the form it was, could not divest the right to exemption, and presents as strong reasons why the principle should be applied in this case as in any of the many cases that have been determined by the Supreme Court. The conclusion thus arrived at is but carrying out the intent and purpose of the exemption law. There was no error committed in overruling the demurrer to the second paragraph of the reply. Having arrived at these conclusions, the al
The ví. -\ave expressed upon the ruling of the court upon the second paragraph of the reply to the fourth paragraph of the answer sustain the conclusion of law of the trial court upon the special finding of facts.
The evidence is in the record and does not only tend to sustain the court in its finding, but the evidence does sustain its finding, and, therefore, the cause assigned in the motion for a new trial, that the decision of the court was • . Astained by sufficient evidence, is not well taken.
:The remaining alleged errors discussed by the appellants are errors of the trial court in excluding the testimony of Martin V. Witherspoon, offered by the appellants, and in refusing to permit the witness Witherspoon to answer certain questions asked by the appellants.
Martin V. Witherspoon, a witness introduced on behalf of the appellants, was asked as follows:
“ State the facts out of which your claim against Sylvester B. Jerauld arose,” to which question the appellees objected, and the objection was sustained; whereupon the appellant stated that he expected to prove by said witness, in answer to said question, that during the years 1882 and 1883, said firm of Witherspoon, Barr & Co., while engaged at Princeton, Indiana, in the general grain and milling business, and for the purpose of carrying on the same, employed the plaintiff, Sylvester B. Jerauld, to act for them as their agent at the town of Patoka, Indiana, in handling and selling for them of the products of their mill, and said Sylvester B. Jerauld acted as such agent
The court sustained said objection and refused to permit said witness to answer said question.
The appellants then propounded to said witness the following question, to wit:
“ Tell the court what business transaction, if any, the firm of Witherspoon, Barr & Company had with the plaintiff, Sylvester B. Jerauld prior to the time of the taking of said judgment against him,” to which question the appellees objected, which objection was sustained; whereupon appellants stated to the court that they expected to prove by said witness, in answer to said question, that said firm had never had any business transactions with said Sylvester B. Jerauld, except the one just detailed to the court by the defendant, and above set out in this his bill of exceptions. The court sustained said objection, and declined to permit said witness to answer said question.
And thereupon said appellants propounded to said witness the following question, to wit:
“ What were the facts out of which the liability of Sylvester B. Jerauld to the firm of Witherspoon, Barr & Company, upon which the judgment you have mentioned was rendered arose ? Detail them to the court,” to which question the appellees objected,- and the objection was sustained; whereupon the appellant stated to the court that they expected to prove by said witness, in answer to said question, that the liability of said Sylvester B. Jerauld to said firm arose out of and on account of the facts and circumstances offered to be proved by the defendants by the witness’ answer to the question immediately preceding this one ; which said facts the court declared himself the facts fully to know and remember, and the same are set forth as above.
It is conceded that the pleadings in the case of Witherspoon, Barr & Co., resulting in a judgment against said Sylvester B. Jerauld, which was assigned to the appellant, Pickrell, and sought to be set off in this action, showed that the action was upon an account, and that there was nothing contained in the pleading, or on the face of the record to the contrary, and that, in fact, it was founded upon contract. It is not claimed that there was uncertainty or ambiguity in the record, as it will be observed that the object and purpose of this evidence were to go behind the record, and show by parol testimony that the action was, in fact, in tort, and not on contract. We think the court ruled correctly in refusing to permit the appellant to introduce, on the trial, the evidence of the witness Witherspoon. Smith v. Wood, 83 Ind. 522; Gentry v. Purcell, 84 Ind. 83.
We find no error in the record for which this case should be reversed. It is, therefore, in all things affirmed, with costs.