23 Ind. App. 533 | Ind. Ct. App. | 1899
The appellees, Solomon Isaacs, Emil Cal-men and Gustav B. CaTmon, under the firm name of S. Isaacs and Company, commenced their action in attachment against appellant. Their complaint was in three paragraphs. With the complaint an affidavit of attachment was filed, a writ duly issued and levied upon certain real estate. Counsel for appellant thereupon entered their special appearance and moved to quash the writ of attachment. This motion was based upon two reasons: (1) “Because it does not appear from the affidavit that there is property of the defendant within the jurisdiction of this court subject to execution;” and (2) “that the affidavit shows on its face that it is on the balance of a judgment against the National Capsule Company, and not against this defendant, and it fails to show that there is any cause of action against the defendant.” This motion was overruled, and the motion, together with the ruling thereon, are brought into the record by bill of exceptions. Appellant then' asked leave to enter its further special appearance and file its plea in abatement to the affidavit in attachment, which motion was overruled, and such motion and ruling thereon are also brought into the record by bill of exceptions. Appellant then entered its appearance and filed its plea in abatement to the affidavit in attachment, to which the original plaintiffs demurred, and the court sustained the same. Appellant then demurred to each paragraph of complaint, which demurrer was overruled and exceptions were reserved? Appellant then filed an answer to each paragraph of complaint, and to the attachment proceedings, in general denial. Appellee Groedel filed his complaint under the original action and the issue was joined thereto by answer in denial. Under the issues thus joined the case was tried by the court, resulting in a general
The affidavit in attachment, omitting the formal parts, is as follows: “Lucius B. Swift, being duly sworn, says that he is the plaintiffs’ attorney in the above entitled cause, and on behalf of plaintiffs he says that the plaintiffs’ claim in said action is on a balance of a judgment entered in cause No. 6956, in order-book 111, p. 489, in the circuit court of Marion county, Indiana, in cause No. 6956, Solomon Isaacs, et ah, v. National Capsule Company, and described in the complaint in this action, and on account for goods sold and delivered, also described in said complaint; that affiant believes that the plaintiffs ought to recover thereon $1,-310.37, with interest, etc., and that the defendant is a nonresident of the State of Indiana.” "We have above noted the objections to the affidavit. Attachment is a statutory' proceeding, and, as defined by Mr. Drake, is' “A provisional remedy whereby a debtor’s property, real and personal, or any interest therein capable of being taken under a levy and execution, is placed in the custody of the law to secure the interests of the creditor pending the determination of the cause.” Drake on Attachment, §5; Elliott’s Gen. Prac., §378. It is the well settled rule in this jurisdiction that, as
In Thierman v. Vahle, 32 Ind. 400, the affidavit described the nature of the, claim as “a balance due on account for goods sold and delivered,” and the Supreme Court held it sufficient. Even if we wholly disregard that part of the affidavit relating to a judgment against the “National Cap
In the case before us, the record shows that the complaint and affidavit in attachment were filed at the same time. If there was any doubt as to the sufficiency of the affidavit when considered alone, such doubt is removed when we refer to the complaint, to which reference is made in the. affidavit. While we do not find that the question has ever been directly decided in this State, yet there-is good authority in the decisions of other courts of high standing for holding that we may look at the complaint in aid of the affidavit. Thus it was held in Nebraska that where the statement of the plaintiff’s.claim in the affidavit shows that it is one for which an attachment may issue, but is not so full as might be desired, reference may be had to the petition to ascertain the precise nature of the plaintiff’s claim. Hart v. Barnes, 24 Neb. 782, 40 N. W. 322. See, also, Edick v. Green, 38 Hun (N. Y.), 202.
We believe this to be the wholesome rule and founded in sound reason. By referring to the complaint, we find facts averred showing that the National Capsule Company, a corporation, purchased a large bill of goods from appelleas, Isaacs and Company; that it did not pay for them; that suit was brought on the account and a judgment recovered; that said National Capsule Company consolidated with other companies; that the consolidated company . assumed the name of the United States Capsule Company; that the consolidated company succeeded to the property of the National Capsule Company, consisting of machinery, real estate, etc., to the value‘of $15,000 and in one paragraph of the complaint it was charged that the National
This court held in Fairbank v. Lorig, 4 Ind. App. 451, that while the affidavit which is the basis of an attachment proceeding must show the facts required by statute, that where such affidavit is not so defective as to prejudice the substantial rights of the defendant, the writ of attachment will, not be quashed. While the affidavit might have been more specific and have gone more into details as to the nature of the claim, yet we think it is sufficient, and we cannot believe that the substantial rights of appellant were prejudiced by the action of the court in overruling the motion.to quash. We have examined all the authorities cited by appellant, but we do not think they sustain the contention that the affidavit was insufficient.
Appellant’s second specification in its assignment of error challenges the action of the court in refusing leave to appear further specially and to file a plea in abatement to the proceedings in attachment. The record in this case is quite voluminous, and counsel for appellant have failed in their brief to refer us to the page, etc., of the record, showing where wfe may find the proceedings and order of the court of which they complain. In this regard, they have not complied with rule twenty-two of this court. Judge Elliott, in his work on Appellate Procedure, §440, says: “It is the duty of counsel to acquaint the court with the parts of the record of which an examination is desired. The court will not hunt through the record to discover the parts of it which counsel assume exhibit the rulings they desire considered.” This is an inexorable rule and has been enforced in very many cases. Evans v. Koons, 10 Ind. App. 603; Brunner
Appellant next discusses the sustaining -of appellees’ demurrer to its plea in abatement traversing the averments in the affidavit for attachment. In the pleading which appellant’s learned counsel are pleased to call a plea in abatement to the affidavit in attachment there are three statements of fact made, as follows: (1) That appellant is a foreign corporation; (2) that it denies being indebted in any wise to appellees on the balance of the judgment described in the affidavit; and (3) that it denies being in-any wise indebted to appellees on account of any judgment of any kind or character, or on account of goods sold and delivered. It is also averred that the facts set forth in the affidavit are not true. Upon these averments, the prayer is: “Wherefore the defendant prays that said cause of action abate and that the plaintiff be not further permitted to prosecute said action herein.” Without deciding the question of practice as to whether or not a plea in abatement to an affidavit in attachment will lie, we are clearly of the opinion that the facts stated are not sufficient to make the plea good. At best, t-he facts pleaded amounted to nothing more than a general denial, and did not present a triable issue upon the affidavit in attachment alone. An attachment proceeding is not an independent one, as has often been held, but is merely incident to and in aid of the main action. True an issue should be formed as to the attachment proceedings, and in this case this was done by answer, and the issue thus formed, it' must be tried, together with the issues in the principal or main action. Foster v. Dryfus, 16 Ind. 158; Excelsior v. Lukens, 38 Ind. 438. In the case last cited, it was held that ■where the facts in the affidavit are denied by an answer, that it is in bar of the proceedings in attachment and not in abatement of the writ. Further discussion of the question is unnecessary. The court did not err in sustaining the demurrer to the plea in abatement.
It is contended, however, that this doctrine does not apply to private or manufacturing corporations. Our attention is called in argument to four cases in support of this proposition, viz.: Treadwell v. Salisbury Mfg. Co. 7 Gray 393; Sargent v. Webster, 13 Met. 501; H. & G. M. Co. v. H. & W. M. Co., 127 N. Y. 252, 27 N. E. 831; Howe v. Boston Carpet Co., 16 Gray 493. We have examined all these cases and find that in neither of them the question we have under consideration was presented. Those cases involved the right of private corporations to close up their
Appellant argues that the second paragraph of the complaint is not strengthened by the averment that the National Capsule Company placed in the hands of appellant a fund with which to pay appellees’ claim, if it should be successfully established, and that in such paragraph appellees have mistaken their remedy, because such remedy would be by a proceeding supplementary to execution, or by garnishment. From what we have said as to the first paragraph, the second would be good without such averment, for, as we have seen, the two paragraphs are alike except the additional averment in the second to which we have just referred. As to whether the paragraph is good upon the theory that appellees may recover as for money had and received, we need not decide. For the reasons given, we must also hold the third paragraph good.
The next question discussed is the overruling of appellant’s motion for a new trial upon the issues formed upon the affidavit in attachment. The reasons assigned for this motion were that the decision was contrary to the law and the evidence, was not sustained by sufficient evidence, and that the
Appellees, with their complaint, submitted interrogatories to appellant to be answered under oath. These interrogatories and answers were introduced in evidence, and from the answers it appears that the National Capsule Company paid to appellant $3,500 to be paid to appellees, Isaacs & Company, and G-roedel, in case they recovered judgment. It is also shown by an answer that Isaacs did recover a judgment for about $3,000, which has been paid, and that a balance of $429.50 of the $3,500 still remained in-the hands of appellant. If this were all the evidence on this point, it would seem that the claim of Isaacs & Company had been fully paid, but it is shown by the record that the original judgment in favor of Isaacs & Co., was only for $1,646.53, and it also appears that the $3,000 shown to have been paid by appellant, by its answers to interrogatories, was paid on a judgment against one Robert McCutchen, who became indorser for the National Capsule Company. McCutchen was the president of such company, and upon the consolidation became president of appellant. The amount so paid was paid some three or four months before this action was tried. Mr. Stevens, general manager of appellant, testified that at the time of the trial, appellant had in its hands $3,500 or $3,600 belonging to the National Capsule Company, “awaiting the results of Isaacs and Groedel.” He said: “It is a fund that we have reserved to meet these two. cases.” It was further shown by the evidence of Stevens that that money was in Detroit in the hands of appellant, and that the money could be had at any time it was wanted. From these facts, it is clear that the money paid on the McCutchen judgment in New York had no connection with or relation to the special fund set aside for the payment of the claims of
From the entire record, we conclude that a correct result was reached by the trial court, and that there was no error to work a reversal. Judgment affirmed.