Beckman Supply Co. v. Newell

• Decision Date: 12 March 1918
• Docket Number: No. 9514.,9514.
• Citation: 68 Ind.App. 679,118 N.E. 962
• Parties: BECKMAN SUPPLY CO. v. NEWELL et al.
• Court: Indiana Appellate Court

68 Ind.App. 679

118 N.E. 962

BECKMAN SUPPLY CO.

v.NEWELL et al.

No. 9514.

Appellate Court of Indiana, Division No. 1.

March 12, 1918.

Appeal from Superior Court, Lake County; Virgil S. Reiter, Judge.

Proceeding supplemental to execution by the Beckman Supply Company against James and John Newell, partners doing business under the name and style of Newell Bros., and others. From the judgment, plaintiff appeals. Affirmed.Wm. J. Whinery, of Hammond, for appellant. Frank B. Pattee, of Crown Point, for appellees.

FELT, J.

This is a proceeding supplemental to execution brought by appellant against James and John Newell, partners doing business under the name and style of Newell Bros., Henry P. Downey and A. Portz, partners doing business under the name of Downey & Portz Company, the Grasselli Chemical Company, a corporation, and a number of other defendants.

The verified amended complaint alleges, in substance, that on October 19, 1914, appellant recovered a judgment in the Lake superior court against Newell Bros. aforesaid for $654.59; that on February 20, 1915, it caused an execution to be issued thereon, and the same was delivered to the sheriff of Lake county, Ind., in which county said Newell and Newell resided; that the same was wholly unsatisfied when the complaint was filed; that on July 22, 1915, appellant caused an alias execution to be issued on said judgment, and thereupon said first execution was duly returned unsatisfied; that said judgment is unpaid, and the sheriff still holds said alias execution, and the same is unsatisfied; that Downey and Portz are residents of Lake county, Ind., and are indebted to Newell Bros. in the sum of $500; that the Grasselli Chemical Company is a resident of Lake county, Ind., and is indebted to said Newell Bros. in the sum of $1,500; that said Newell Bros., as partners, are not entitled to claim any property as exempt from execution; that the defendants Henry P. Downey and A. Portz, partners, James Cunningham, Arthur Hatfield, Frank Hatfield, William Buehring, Joe Minch, Harry Blodgett, Jacob Wiker, Axel Anderson, Kussman Krevice, Lawrence Stoeker, and George Manke, each claim some interest in and to the said sum of money due from the defendant Grasselli Chemical Company to said Newell Bros., the exact nature of which claims is unknown to plaintiff; that said claims are unfounded, and are junior to the rights of plaintiff; that said parties are made defendants hereto to answer as to their rights, if any, in the premises. Downey and Portz filed a cross-complaint which they dismissed before the court announced its finding. The Grasselli Chemical Company filed an interpleader asking to be permitted to pay the sum due from it into court and be discharged from further liability. It thereafter filed an answer of general denial to the amended complaint. Downey and Portz also filed a special answer in which they alleged, in substance, that Newell Bros. were financially embarrassed and had assigned to them the sum of money due from Grasselli Chemical Company; that they were the owners thereof and entitled to payment of the same. To this answer appellant filed a reply in two paragraphs, the first of which was a general denial.

The second paragraph alleges in substance:

That in June, 1915, Newell Bros. entered into a written contract with the Grasselli Chemical Company to construct a sidewalk along and upon its real estate for the sum of $1,018.70, and entered upon the work; “that on the 17th day of July, 1915, with the intent to cheat, hinder, delay, and defraud their creditors, including this plaintiff, the said defendants Newell and Newell purported to assign the proceeds of said contract to defendants Downey and Portz; that said Downey and Portz received and accepted said assignment with full knowledge and notice that said purported assignment was so made with intention to hinder, delay, and defraud the creditors of said defendants Newell and Newell, including the plaintiff; that at the time of making said purported assignment said Newell and Newell were insolvent and were without sufficient other property, goods, and chattels to pay their then existing debts, including the claim of plaintiff, all of which said defendants Downey and Portz well knew; that by said assignment of the proceeds of said contract said Newell and Newell divested themselves of all power and property with which plaintiff's claim herein might be paid; that at the time of said purported assignment said defendants Newell and Newell did not then have, nor have they since had, nor have they now sufficient other property, subject to execution, with and out of which to pay their then present and existing debts, including the claim of plaintiff herein; that at the time of making said purported assignment said defendants Newell and Newell, copartners, had no other property whatsoever subject to execution, all of which was well known to said Downey and Portz and to said Newell and Newell.”

Newell and Newell also filed a special answer in which they alleged, in substance, that the property belonging to them as partners is covered by chattel mortgage in the sum of $3,800; that they are indebted to Downey and Portz in the sum of $5,000; that they claim no right to the money held by Grasselli Chemical Company, and prior to the commencement of this proceeding they assigned said sum for a valuable consideration to said Downey and Portz.

Appellant replied to such answer by general denial. The other defendants filed a general denial to the complaint. The other defendants to the amended complaint also filed cross-complaints, which were dismissed before the trial of the case. The plaintiff also dismissed its complaint as to Lake County Savings & Trust Company. The plaintiff requested the court to find the facts specially, and state its conclusions of law thereon, which request was granted.

The cause was tried on October 27, 1915, on the issues formed on the amended complaint and the cross-complaint of Downey and Portz. The case was taken under advisement by the court.

On November 1, 1915, Downey and Portz dismissed their cross-complaint, and moved the court to strike out plaintiff's request for a special finding of facts. The court thereafter sustained said motion, to which ruling appellant excepted.

The court made a general finding that plaintiff take nothing by its complaint, and that the funds in the hands of Grasselli Chemical Company be paid to Downey and Portz. Appellant's motion for a new trial was overruled, and judgment rendered in accordance with the aforesaid finding. Appellant has assigned as error: (1) The overruling of its motion to require Downey and Portz to make their special answer more specific; (2) overruling appellant's demurrer to the special answer of Downey and Portz; (3) sustaining the motion to strike out its request for a special finding of facts and conclusions of law, and in refusing to make a special finding of facts and state conclusions of law thereon; (4) overruling appellant's motion for a new trial; (5) sustaining the motion of Downey and Portz to modify the final judgment rendered on November 26, 1915, and in modifying said judgment. This suit was brought in pursuance of the provisions of section 859 et seq. of Burns' Statutes 1914.

[1] Section 822, R. S. 1881, being section 865, Burns' 1914, is as follows:

“Costs shall be awarded and taxed in this proceeding as in other cases; and all proceedings under this act, after the order has been made requiring parties to appear and answer, shall be summary, without further pleadings, upon the oral examination and testimony of parties and witnesses. But the sufficiency of the order and of the affidavit first filed by the plaintiff may be tested by demurrer or motion to dismiss or strike out the same.”

This section expressly dispenses with formal pleadings other than the affidavit or verified complaint on which the order was issued, and the demurrer and motions authorized by its provisions for the purposes therein stated. Wallace v. Lawyer, 91 Ind. 128-130;Burkett v. Holman, 104 Ind. 6-11, 3 N. E. 406;Pouder v. Tate, 111 Ind. 148-150, 12 N. E. 291;Burkett v. Bowen, 118 Ind. 379-381, 21 N. E. 38.

In Burkett v. Holman, supra, our Supreme Court said:

“All of section 822, except so much thereof as relates to the award and taxation of costs, is new legislation, that is, it is not to be found in the old Code of 1852, but appears for the first time in the Civil Code of 1881. So much of the section as relates to costs is a literal reenactment of section 525 in the Civil Code of 1852. 2 R. S. 1876, p. 232. The new legislation in such section is what may be called a legislative overruling, by implication, of the decisions of this court, in Toledo, etc., R. W. Co. v. Howes, 68 Ind. 458, supra, and the cases which follow it. That is, contrary to the decisions of this court in the cases cited, that pleadings might be filed and...