American White Bronze Company v. Clark

• Decision Date: 28 February 1890
• Docket Number: 14,004
• Citation: 23 N.E. 855,123 Ind. 230
• Parties: The American White Bronze Company et al. v. Clark
• Court: Indiana Supreme Court

23 N.E. 855

123 Ind. 230

The American White Bronze Company et al. v. Clark

No. 14,004

Supreme Court of Indiana

February 28, 1890

Petition for a Rehearing Overruled April 25, 1890.

From the Clinton Circuit Court.

The judgment is affirmed, with costs.

M. E Clodfelter, H. C. Sheridan and J. W. Merritt, for appellants.

A. D Thomas, for appellee.

OPINION

Mitchell, C. J.

This was a proceeding supplementary to execution, and was originally instituted by Edwin Clark against Mary Ann and William L. Lee. The plaintiff charged in his complaint that he had recovered a judgment in the Montgomery Circuit Court against Milton C. Clark for a sum named, that he had caused an execution to be placed in the hands of the sheriff of Montgomery county, that being the county in which Milton Clark, who was alleged to be an unmarried man, resided. It was also charged that Mary Ann Lee and William L. Lee were each indebted to Milton C. Clark in specific sums, which the latter was not entitled to claim as exempt from execution, and which he unjustly refused to apply to the satisfaction of the judgment and costs theretofore recovered by the plaintiff. Subsequently, it appearing that the American White Bronze Company was asserting some claim to the indebtedness due from Mary Ann and William L. Lee to Milton C. Clark, that company, upon the order of the court, was made a party to answer to any claim or interest it had to the above indebtedness. This was done by means of an amended complaint, in which it was alleged that the Bronze Company claimed to be the owner of the indebtedness due from the Lees to Clark, and in which it was averred that the company had no interest.

There was no error in the order requiring new parties to be brought in. Although at one time denied, it may now be accepted as settled that in proceedings of this character parties may be brought in by proper pleadings, and required to answer in respect to any interest or conflicting claim which they may have or assert to the property or indebtedness due the execution defendant which is sought to be reached. McMahan v. Works, 72 Ind. 19; Toledo, etc., R. W. Co. v. Howes, 68 Ind. 458; Burkett v. Holman, 104 Ind. 6, 3 N.E. 406.

There is no valid objection to the complaint. The facts therein stated were sufficient to require all the defendants to answer. It is enough to say that the answer of the American White Bronze Company, which purported to be a plea in abatement, did not state facts sufficient to abate the proceeding. It was not a sufficient plea of a prior action pending. It did not show that another action was pending between the same parties, involving the same cause of action, at the time this proceeding was commenced. 1 Works Pr., section 567; Morris v. State, ex rel., 101 Ind. 560.

It is also settled that in a proceeding of this character, where issues of fact are formed, a jury trial as in...