Butner v. Bowser
| Decision Date | 19 December 1885 |
| Docket Number | 12,295 |
| Citation | 3 N.E. 889,104 Ind. 255 |
| Parties | Butner v. Bowser et al |
| Court | Indiana Supreme Court |
From the Boone Circuit Court.
The judgment is reversed, with costs, and the cause is remanded with instructions to overrule the demurrers to the first and second paragraphs of answer, and for further proceedings not inconsistent with this opinion.
F. M Charlton and T. W. Lockhart, for appellant.
C. M Zion, for appellees.
On and before the 17th day of January, 1885, the appellees, Bowser and Trout, the plaintiffs below in this cause, owned and held a judgment against the appellant, Butner, for the sum of $ 238.87, rendered in the court below upon a promissory note executed by Butner, which judgment was in full force and wholly unpaid. On and before such 17th day of January, 1885, appellant Butner was the owner and holder of two judgments against the appellees Bowser and Trout, one for $ 56.75, and the other for $ 65.96, both of which judgments were rendered in the court below, and were in full force and wholly unpaid. The appellees, on the day and year aforesaid, filed their written motion or complaint in this cause, setting up substantially the facts above stated and praying that the judgments, so owned and held by appellant Butner, might be set off against an equal amount of the appellees' judgment against him, Butner, and for judgment against the latter for the residue of their judgment and for other proper and equitable relief.
To this motion or complaint appellant Butner answered in two special or affirmative paragraphs, to each of which the appellees' demurrer, for the alleged want of facts therein to constitute a defence to their suit, was sustained by the court, Butner excepted to these rulings, and declined to amend either of such paragraphs of his answer. He then answered further, by a general denial of the motion or complaint. The issues joined were tried by the court, and findings were made (1) of the amount due appellees on their judgment, (2) of the amount due Butner on his judgment, and (3) of the amount of the residue yet due the appellees, after setting off enough of their judgment to satisfy the amount due Butner on his judgments. Thereupon the court made and rendered its orders and judgment in accordance with its finding and as prayed for in appellees' motion or complaint. Butner's motion for a new trial having been overruled by the court, he has appealed from the judgment below to this court.
The evidence on the trial is not in the record, and the only errors assigned by Butner, which are discussed by counsel or present any question for our decision, are based upon the rulings of the court below, in sustaining appellees' demurrers to the first and second paragraphs of his answer.
In the first paragraph of his answer, Butner alleged in substance that, on the 9th day of October, 1884, appellees caused an execution to be issued by the proper clerk, upon their judgment against him, and placed the same in the hands of the sheriff of Boone county; that such execution remained in full force until January 29th, 1885, when it was returned by such sheriff, as shown by his return thereon; that, on the 14th day of January, 1885, such sheriff made a demand upon Butner for the payment and satisfaction of such execution; that Butner on the same day, claiming an exemption of his property from levy and sale under such execution, pursuant to such claim, then and there selected for his appraiser Nelson Lucas, a resident householder of Boone county, and such sheriff selected for appellees, as an appraiser, John Christy, a resident householder of such county; that on the 28th day of January, 1885, such appraisers, having been legally qualified, duly made an appraisement of the articles named in the schedule and inventory of appellant's property, a copy of which was filed with and made part of such paragraph of answer; and that the sum total of such appraised articles amounted to $ 469.85.
Butner further alleged such facts as showed that the schedule and inventory of his property strictly conformed to the requirements of section 714, R. S. 1881, and contained all the statute required, and that the aggregate value of all his property was less than six hundred dollars; that he, Butner, was a resident householder of Boone county, and had been such since the issuing of appellees' execution, and, as such, on January 29th, 1885, he subscribed and was sworn to such inventory and appraisement, as required by law; and that he claimed at the time, and since, and still claimed, all the articles of property in such schedule and inventory as exempt from levy and sale upon appellees' execution; that appellees' judgment, on which their execution was issued, was recovered against him, Butner, on his contract, to wit, upon a promissory note executed by him on November 3d, 1883, and was the same judgment sought to be set off against him by appellees in this suit; that appellant's judgment against the appellees, which they were seeking to set off against their judgment and to have entered as a credit thereon, was included in his schedule and inventory, and was claimed as exempt by the appellant, and was so set off to him by such sheriff, and was appraised in such inventory at $ 50.96, not including an attorney's fee lien thereon for $ 15; that on the 29th day of January, 1885, appellant tendered such schedule and inventory of his property to such sheriff, who accepted and made the same a part of his return of appellees' execution, which he returned nulla bona, on such last named day; and that he was not the owner of the Markland judgment against the appellees, as alleged in their motion, nor had he any interest therein. Wherefore, etc.
In the second paragraph of his answer Butner filed therewith an inventory of all...
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