Baker v. State ex rel. Mills

• Decision Date: 06 January 1887
• Docket Number: 12,304
• Citation: 9 N.E. 711,109 Ind. 47
• Parties: Baker v. The State, ex rel. Mills
• Court: Indiana Supreme Court

9 N.E. 711

109 Ind. 47

Baker v. The State, ex rel. Mills

No. 12,304

Supreme Court of Indiana

January 6, 1887

From the Hamilton Circuit Court.

The judgment is reversed at appellee's costs, and the cause is remanded with instructions to overrule the demurrer to those pleas and sustain the demurrer to the verified complaint.

F. M Trissal, A. F. Shirts, G. Shirts and W. R. Fertig, for appellant.

D. Moss and R. R. Stephenson, for appellee.

OPINION

Zollars, J.

Appellant was the defendant below. The substance of the complaint against him, verified by the relatrix, Clara Mills, is, that in January, 1883, the State, upon her relation recovered judgment against appellant and one Gray; that appellant has fraudulently concealed, removed, conveyed and transferred his property subject to execution, with intent to defraud and delay the relatrix in the collection of the judgment; that he has moneys, rights, credits and effects with which the judgment might be paid, and which he fraudulently withholds and conceals, with a view to delay and defraud the relatrix. The prayer is for an execution against the body of appellant.

The court below found that he had money with which the judgment might be paid, and ordered a writ for his imprisonment in the county jail until he should surrender the money, or until otherwise discharged by due process of law. From that judgment appellant appealed. As will be observed, appellee sought and procured what in the statute is called an execution against the body of the judgment debtor. A warrant for the proceeding is found in sections 676, 680, 792, et seq. R. S. 1881.

Section 22 of article 1 of our Constitution inhibits imprisonment for debt, except in case of fraud. Counsel for appellant submit for consideration the proposition, that the fraud for which, impliedly, under that section of the Constitution, there may be imprisonment for debt, is fraud committed in the transaction out of which the debt or liability arose, and not fraud in refusing to apply money or property in payment of the debt after judgment, or in withholding the same from execution.

Whether or not, under the above section of the Constitution, valid statutes might be enacted providing for an execution against the body of the debtor in cases where he was guilty of fraud in the transaction out of which the debt or liability arose, is a question we need not here decide. In some of the States, such statutes have been enacted and enforced.

It is very clear to us, that the leading purpose, if not the only purpose, of the above section of the Constitution, was to authorize imprisonment for fraud practiced in avoiding the payment of judgment debts. McDonald's Treatise (Schroeder's ed.), p. 226.

From the first, our statutes have been enacted and enforced upon this theory. Such are the statutes involved here; the statutes providing for proceedings supplemental to execution arrest and bail, ne exeat, and the statutes authorizing writs of capias ad satisfaciendum by justices of the peace.

Many, if not all, of the other States have similar statutes, and have enforced them without question, by the courts, as to their constitutionality.

The complaint here, however, we think, is defective. Section 680 of the statutes, R. S. 1881, provides that no execution against the body shall be issued while an execution against the property remains unreturned. An execution against the body is an extraordinary remedy, and is not to be resorted to if the amount due upon the judgment may be made by an ordinary execution against the property of the judgment debtor. Such was the rule in this State before the adoption of the code, and such is the rule elsewhere. Gwinn v. Hubbard, 3 Blackf. 14; Wendover v. Tucker, 4 Ind. 381; Cutler v. Colver, 3 Cow. 30; Scott v. Shaw, 13 Johns. 378; McDonald v. Wilkie, 13 Ill. 22.

The purpose of the code is to enforce, and not to overthrow that rule.

It appears from the complaint in this case, that the judgment which appellee is seeking to collect, is against appellant and Joseph R. Gray. There is no averment that an execution had been issued and returned unsatisfied, nor is there any averment that Gray was insolvent. For aught that appears, he may have had an abundance of property in the county out of which the amount due upon the judgment might have been readily made by an ordinary execution. It does not appear from the complaint, that appellant is under any greater obligation to pay the judgment than is Gray, and for aught that appears, as between themselves, the greater obligation may be upon the latter. Section 792 of the statutes, which provides for the affidavit or verified complaint in a case like this, should be construed in connection with section 680 upon the same subject. Upon such a construction, and looking to the spirit of the whole act, and the analogies of other similar proceedings, we think that it should be made to appear by the affidavit or verified complaint, that there is a necessity for resorting to such an extraordinary proceeding; in other words, it should be made to appear that the amount due upon the judgment can not be collected by an ordinary execution against the property of the judgment debtor or debtors. McDonald v. Wilkie, supra.

It has been uniformly held, that in order to maintain a proceeding supplemental to execution, to reach property and credits of the judgment debtor, in the hands of, and due from, third persons, it must be shown that there is a necessity for the extraordinary proceedings; in other words, that it must be shown that the amount can not be collected from the judgment defendant by an ordinary execution. Dillman v. Dillman, 90 Ind. 585; Earl v. Skiles, 93 Ind. 178; Wallace v. Lawyer, 91 Ind. 128; Cushman v. Gephart, 97 Ind. 46; Mitchell v. Bray, 106 Ind. 265, 6 N.E. 617.

And so, in an action to set aside a fraudulent conveyance, it must be shown that neither of the judgment debtors has property out of which the amount of the judgment can be made. Baugh v. Boles, 35 Ind. 524; Bruker v. Kelsey, 72 Ind. 51; Sherman v. Hogland, 73 Ind. 472; Adams v. Slate, 87 Ind. 573.

The construction of our several statutes providing for extraordinary remedies in the collection of judgments, is, that such remedies are not to be resorted to where the judgments can be collected by an ordinary execution. That construction should be given to the statute involved here. Upon such a construction, the affidavit or verified complaint is defective, in that it fails to show that the amount due upon the judgment could not be collected by an ordinary execution against the property of Gray.

With the statement, simply, that in our judgment, the pleas in abatement are insufficient, we pass to the first paragraph of the plea in bar, which presents the important and vital question in the case.

That plea is in the way of answer to so much of the verified complaint as charges that appellant has moneys, rights, choses in action, credits and effects with which the judgment might be paid, and which he fraudulently withholds and conceals with a view to delay and defraud appellee in the collection of the judgment.

The substance of the plea is, that prior to the commencement of this action, appellee instituted proceedings supplemental to execution against appellants Joseph R. Gray, Elisha Mills and Augustus F. Shirts, in the Hamilton Circuit Court, in which county the defendants were residents; that in the affidavit or verified complaint in that action, it was charged that Mills, the principal judgment debtor, was insolvent, and that neither he nor Gray at any time since the rendition of the judgment had any property subject to execution; that appellant had no real estate or other property that could be reached by execution; that he, as owner, had from two to six thousand dollars in cash, and choses in action in his possession, which could not be more particularly described; that Shirts had in his hands fifteen hundred dollars in money, and choses in action, belonging to appellant, all of which appellant unjustly refused to apply in satisfaction of the judgment; that all of the defendants in that action appeared and answered the verified complaint by a general denial, and that after hearing the evidence, the court found for said defendants and gave them judgment for costs.

It is further alleged in the plea, that the moneys, choses in action, credits and effects, which were described in the verified complaint in that action, and which it was charged appellant had, and fraudulently refused to apply in payment of the judgment, are the identical moneys, choses in action, credits and effects described in the verified complaint in this action, and which it is charged he has concealed and withheld, with the fraudulent intent to delay and defraud appellee. It is further alleged, that since the commencement of the supplemental proceedings, appellant has not received or acquired any money or property.

All of the facts thus stated in the plea, the demurrer admits as true. The question then arises, is the adjudication in the proceedings supplemental to execution, conclusive here? Is the plea good as a plea of res adjudicata?

This question involves an inquiry, first, as to the nature of the proceeding supplemental to execution. That such a proceeding is a civil action, within the meaning of the code, is settled by the latest decisions of this court. Burkett v. Holman, 104 Ind. 6, 3 N.E. 406, and cases there cited.

The second inquiry is, what is the nature of the proceeding to procure an execution against the body?

Section 792, R. S. 1881, provides, as an initiatory step, that an affidavit shall be filed.

Section 794 provides for the giving of notice, very much as in an ordinary action.

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