175 Ind. 312 | Ind. | 1911
Relatrix filed her petition in the Tipton Circuit Court on May 3, 1909, for an alternative writ of mandate, directing appellee Beck, as sheriff of that county, to levy an execution then in his hands on personal property and on certain lands of appellee Johnson, to sell them, and apply the proceeds to the payment and satisfaction of an unpaid judgment held by relatrix against said Johnson, upon which judgment the execution had been duly issued. The alternative writ was issued. Upon his own application Johnson was admitted as a party defendant, and answered. Appellee Beck filed an answer and return to the complaint. Relatrix’s demurrers for want of facts, addressed to these answers, were overruled, she'refused to plead further, and judgment was rendered for appellees and against relatrix for costs. The overruling of these demurrers is the basis of appellant’s assignment of errors in this court.
The one question seriously presented for determination in this appeal is whether the discharge in bankruptcy of appellee Johnson released him from the payment of the judgment set out in the foregoing answers under section seventeen of the federal bankruptcy act of 1898 (U. S. Comp. Stat. [1901] p. 3428, 30 Stat- 551) which reads as follows: “A discharge
Preliminary to the discussion of this question, however, appellant’s counsel earnestly and ably insist that these answers are bad, because neither of them contains the direct allegation that the judgment therein set forth, and upon which the execution involved in this case was issued, “ was not rendered in an action for fraud,” and at the same time urge that setting out at length in these answers the complaint on which the judgment was rendered made the answers objectionable. Neither of these contentions can be approved. The very life of the answers depended upon the character of the judgment, and that is to be ascertained from the pleadings in the action in which it was rendered. Where the pleadings are not ambiguous, or equivocal as to the character of the action, they are the only means of determining the nature of the action and the character of the judgment. Furry v. O’Connor (1891), 1 Ind. App. 573, 580; Smith v. Wood (1882), 83 Ind. 522, 524; Gentry v. Purcell (1882), 84 Ind. 83, 84. The direct allegation that the judgment “ was not rendered in an action for fraud,” would, to say the least, not add anything to the strength of the answers. The existence of fraud or the absence of it, as being the foundation of the action on which the judgment was based, must appear from the complaint and the issue joined upon it, and that could properly be shown by setting the complaint out in the answers, as was done.
In the case of Crawford v. Burke, supra, it is held that if a debt originates in, or is founded upon, a contract, express
It is manifest that the trial court did not err, as contended, in its rulings on the sufficiency of these answers.
" Where an officer fails or refuses to perform his duty in regard to the execution of process, the party injured may proceed against him by an action on the case for damages, or by an attachment for contempt of court.” 25 Am. and Eng. Ency. Law (2d ed.) 688, 689. See, also, State, ex rel., v. Craft (1880), 17 Fla. 722; Armstrong v. Stansel (1904), 47 Fla. 127, 36 South. 762; Matthews v. Nance (1897), 49 S. C. 389, 27 S. E. 408; McFarlan v. State (1897), 149 Ind. 149; 26 Cyc. 213.
Judgment affirmed.