14 Ind. 228 | Ind. | 1860
J.— Whisler, having recovered a judgment against one Lent, in the Circuit Court of Wabash county, and having issued an execution thereon which was returned nulla bona, filed an affidavit stating the recovery of the judgment, and the issuing and return-of the execution, and that the appellant, Wall, was indebted to Lent in the sum of 155 dollars on note and mortgage. Wall was summoned to answer, but Lent was not in any manner made a party to the proceedings. Wall appeared, and moved to set aside the complaint and dismiss the proceedings for the want of proper parties, but his motion was overruled and he excepted. Wall then answered, and such proceedings were had as led to an order by the Court that Wall pay the money into the hands of the clerk of the Court, there to await its further order. The proceedings were had under the provisions of sections 522 and those following, of the act concerning “proceedings supplementary to execution.” 2 R. S. p. 153.
We are of opinion that the order of the Court, in this
The 22d section of the code, 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 cannot be had without the presence of other parties, the Court must cause them to be joined as proper parties.”
We have seen that Lent was an indispensable party, in whose absence a complete determination of the controversy could not be had, and we think it was fatally erroneous to proceed to a determination in his absence.
The order of the Court below is reversed, and the cause remanded, with leave to the plaintiff to make Lent a party to the proceeding.