Becknell v. Becknell
| Decision Date | 15 February 1887 |
| Docket Number | 12,539 |
| Citation | 10 N.E. 414,110 Ind. 42 |
| Parties | Becknell et al. v. Becknell |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled April 28, 1887.
From the Marshall Circuit Court.
The judgment is affirmed, with costs.
J. D McLaren, L. M. Lauer and E. C. Martindale, for appellants.
S. J North, M. A. O. Packard and O. M. Packard, for appellee.
This was a suit by appellee against appellants, Henry and James M Becknell, in a verified complaint of one paragraph.
The object of the suit, as shown by appellee's prayer for relief, was (1) to obtain an order of court enjoining appellant Henry Becknell from selling, assigning, transferring, or in any manner disposing of certain notes and a mortgage, described in the complaint herein, or any other property of any kind belonging to him, "until the final hearing and disposition of this cause," and (2) to obtain a further order requiring appellant James M. Becknell, who was alleged to be indebted to appellant Henry, to answer as to such indebtedness, and to pay into court, of the sums first due from him to appellant Henry, an amount sufficient to satisfy appellee's judgment and costs, described in her complaint herein.
A temporary restraining order was granted, and upon the final hearing of the cause decrees and orders were made and entered by the court, substantially in accordance with the prayer of appellee's complaint.
Errors are assigned here by the appellants separately, which call in question (1) the jurisdiction of the court below of the subject-matter of this action, and (2) the sufficiency of the facts stated in the complaint to constitute a cause of action.
On the 16th day of April, 1885, appellee filed her complaint in this cause, in the Marshall Circuit Court, against the appellants, Henry and James M. Becknell, wherein she alleged that on the 20th day of March, 1885, she recovered in such court a judgment against appellant Henry Becknell, for the sum of $ 800 for her alimony, in an action then and there pending, wherein she was plaintiff and appellant Henry was defendant, which said judgment and the costs of such suit, which she also recovered, remained in full force and wholly unpaid, and had not been replevied, nor had any appeal been taken therefrom. A copy of such judgment was filed with, and made a part of, such complaint.
And the appellee averred that, immediately after the rendition of such judgment for alimony in said cause, appellant Henry Becknell entered into a fraudulent arrangement and purpose to cheat, hinder and delay appellee in the collection of her said judgment for alimony in said cause; and in disobedience and contempt of the order and decree of such court, that he should pay her such sum of $ 800 and costs, that he fraudulently, corruptly and wrongfully, with such fraudulent intent of preventing appellee from collecting such judgment, transferred a large tract of land and farm, particularly described, owned by him and of the value of $ 8,000, in Kosciusko county, Indiana, to his co-appellant, James M. Becknell, who was his son, and took from the latter a mortgage to himself on the same real estate to secure the payment of six $ 1,000 notes, executed by his son and payable to himself at the "State Bank" at Warsaw and due at different dates in the future, extending over a long period of time, the first one being due six months after date; and that the conveyance of such real estate to James M. Becknell was executed on the 28th day of March, 1885, and such mortgage and notes were of the same date; that, to more effectually and securely accomplish the fraudulent purpose aforesaid, appellant Henry Becknell took with him to the city of Warsaw, in Kosciusko county, John D. McLaren, Esq., his attorney in the defence of appellee's suit for divorce and alimony, to transact the business of placing his said real estate, in the way it was done, beyond the reach of appellee's said judgment; and that when they had accomplished the transfers aforesaid, they openly boasted of the fraud, and said that appellee could then "whistle for her judgment;" and that appellant James M. Becknell had full knowledge of appellee's judgment, and of the orders of such court that appellant Henry should pay appellee such sum of $ 800, at the time he took the conveyance of such real estate, and took such conveyance with full knowledge of the fraudulent intent of appellant Henry in executing to him such conveyance.
Appellee further alleged, that appellant Henry Becknell had no other real estate, in this State or elsewhere, so far as she was informed and believed, except the tract of land in Kosciusko county, so conveyed by him to his co-appellant, James M. Becknell; nor had appellant Henry any other property of any kind, subject to execution, out of which appellee's judgment, or any part thereof, could be collected; that, unless appellee could obtain and hold some lien and claim upon the proceeds of such real estate, so conveyed by appellant Henry to his co-appellant, James M. Becknell, she would be wholly remediless to secure the payment of her said judgment, or any part thereof, and the purpose to defraud her, entered into by the appellants, Henry and James M. Becknell, would be consummated; that appellant Henry had boasted to his friends that, as soon as he could make such fraudulent conveyance and obtain the notes aforesaid, payable in bank, he intended to negotiate such notes and invest the proceeds thereof in government bonds, which would put them and all his property beyond the reach of appellee's judgment, or of any execution that might be issued thereon; that appellee had just learned of such fraudulent transfer and of the other circumstances aforesaid, connected therewith, and she had brought this suit to secure her rights, at the earliest possible moment; and that, unless appellant Henry were immediately enjoined by the court from transferring such notes and mortgage, appellee would be without remedy or power to collect her said judgment, or any part thereof. Wherefore, etc.
The several matters and things, stated in the foregoing complaint, were verified by the affidavit of S. J. North, Esq., on behalf of appellee.
Appellant Henry Becknell separately demurred to appellee's complaint herein, for the following grounds of objection: 1. The court below had no jurisdiction of the subject of the action; and 2. Appellee's complaint herein does not state facts sufficient to constitute a cause of action. This demurrer was overruled by the court, and such ruling is assigned here as error. Appellants jointly assigned here, as error, "that the appellee's complaint does not state facts sufficient to constitute a cause of action against them." Considering these two errors in the order of their statement, the first question for our decision may be thus stated: Did the court below err in overruling the separate demurrer of appellant Henry Becknell to appellee's verified complaint herein, for either of the causes specified in such demurrer? In other words, was it apparent on the face of such complaint, that the facts stated therein were not sufficient to constitute a cause of action? Or, if such facts were sufficient, was it apparent from such complaint that the court below had no jurisdiction of the subject of the action?
We are of opinion that the facts stated in appellee's complaint were abundantly sufficient to constitute a cause of action against appellant Henry Becknell, and he alone demurred to such complaint. The cause of action, which appellee declared upon, was a judgment for alimony and costs that, before the commencement of this suit, and by the consideration of the court below, she had recovered against appellant Henry Becknell, which judgment, she averred, remained in full force and wholly unpaid, and had not been replevied, nor had any appeal been taken therefrom. A judgment is a "debt of record," and, whether foreign or domestic, an action may be maintained thereon for the recovery of such debt, even where it might appear that the collection thereof could be enforced by execution issued thereon out of the proper court. The owner of a judgment may enforce its collection by the process of the court wherein it was rendered; or he may, if he so elect, use his judgment as a cause of action, and bring suit thereon in the same court or any court of competent jurisdiction, and prosecute such suit to final judgment. Gould v. Hayden, 63 Ind. 443; Palmer v. Glover, 73 Ind. 529; Campbell v. Martin, 87 Ind. 577.
But it is claimed that the complaint was bad, on the demurrer of Henry Becknell thereto, because it appeared that the debt of record, which was the foundation of appellee's action was not due and payable when this suit was commenced. It is said by appellants' counsel, in argument, that appellee's judgment for alimony, which was the basis of her complaint herein, "was to be paid in sixty days from March 18th, 1885, and these proceedings by attachment, etc., were commenced April 16th, 1885, less than thirty days after the rendition of appellee's judgment." It was not alleged in appellee's complaint, however, that her judgment for alimony was to be paid in sixty days from March 18th, 1885; and, therefore, the objection to the complaint, that the judgment for alimony declared upon therein was not due and payable, when this suit was commenced, was not presented by the demurrer of Henry Becknell to such complaint. Perhaps, appellants' counsel have made this objection to the sufficiency of appellee's complaint, upon the supposition that the judgment for alimony was made a part of such complaint, because it was stated therein that a copy of such judgment was therewith filed and made part thereof. Our civil code provides that, when a...
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