21 N.E. 543 (Ind. 1889), 13,008, Purple v. Farrington

Docket Nº:13,008
Citation:21 N.E. 543, 119 Ind. 164
Opinion Judge:Berkshire, J.
Party Name:Purple et al. v. Farrington et al
Attorney:W. L. Penfield, for appellants. C. A. O. McClellan and D. A. Garwood, for appellees.
Case Date:May 27, 1889
Court:Supreme Court of Indiana
 
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Page 543

21 N.E. 543 (Ind. 1889)

119 Ind. 164

Purple et al.

v.

Farrington et al

No. 13,008

Supreme Court of Indiana

May 27, 1889

From the DeKalb Circuit Court.

Judgment reversed, with costs.

W. L. Penfield, for appellants.

C. A. O. McClellan and D. A. Garwood, for appellees.

OPINION

[119 Ind. 165] Berkshire, J.

The appellees, as partners, sued the appellants, Johnson and Cannan, as partners, to recover a sum of money claimed to be due them, and averred in their complaint that the said appellants had executed to their co-appellant, Purple, a chattel mortgage upon all the partnership goods owned by them to secure an alleged indebtedness due to the mortgagee from Cannan, one of the partners, contracted long before the existence of the partnership between Cannan and Johnson; that Johnson and Cannan were insolvent when the mortgage was executed, and that the said Purple accepted the mortgage with a full knowledge of all the facts; that the said mortgage was executed by Johnson and Cannan and accepted by said Purple for the purpose of defrauding creditors. With the complaint an affidavit in attachment was filed against Johnson and Cannan, charging them with having sold and conveyed their property, subject to execution, by way of chattel mortgage, for the purpose of defrauding creditors. A writ of attachment was issued to the sheriff of DeKalb county, which he executed upon the property described in the chattel mortgage and took possession thereof, the same at the time of the execution of the writ being in the possession of the appellant Purple as mortgagee. Johnson and Cannan moved to quash the writ of attachment, which motion the court overruled. Afterwards the appellees filed an amended complaint, to which the appellants filed demurrers, which were overruled by the court and exceptions saved. After the court had ruled on the demurrers,

Page 544

the appellant Purple answered the complaint by [119 Ind. 166] general denial, and at the same time filed a cross-complaint against the appellees and his co-appellants.

In his cross-complaint, the said Purple averred that, on the 14th day of September, 1885, the appellants Johnson and Cannan executed to him their promissory note for $ 351.84, a copy of which was filed with the cross-complaint and as a part of it; that the said note was due and unpaid; that to secure the said note a chattel mortgage was executed by the appellants Johnson and Cannan, a copy of which is likewise filed with the complaint as a part of it; that the appellees afterwards sued out a writ of attachment in this action and caused the sheriff to forcibly dispossess the cross-complainant of said property by virtue of said writ, claiming that it constituted a superior lien on said goods, and they are made parties to answer and show why the said mortgage should not be foreclosed and said property sold to satisfy the said indebtedness due to the cross-complainant. It is also alleged that the said chattel mortgage was duly recorded within ten days after its execution.

The appellees demurred to the cross-complaint and the cross-complainant confessed the demurrer and obtained leave to file an amended cross-complaint, which he did, and which is designated by the clerk as being found beginning with page 10 of the record.

There is some contention by the appellees' counsel as to whether the pleading found at the place referred to in the record is the original or amended cross-complaint. As we have said, the clerk designates it as the amended cross-complaint, but...

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