Brockhaus v. Allen

• Decision Date: 17 June 1955
• Docket Number: No. 18643,18643
• Citation: 126 Ind.App. 601,127 N.E.2d 344
• Parties: Arnold G. BROCKHAUS, Appellant, v. John ALLEN and Bessie M. Allen, Appellees.
• Court: Indiana Appellate Court

Page 344

127 N.E.2d 344

126 Ind.App. 601

Arnold G. BROCKHAUS, Appellant, v. John ALLEN and Bessie M. Allen, Appellees.

No. 18643.

Appellate Court of Indiana, In Banc.

June 17, 1955.

Winslow Van Horne, Auburn, for appellant.

G. Kenneth Hubbard, Angola, for appellees.

CRUMPACKER, Judge.

The appellees sued the appellant upon a complaint in two paragraphs. The first is for rent alleged to be due under the terms of a written lease whereby the appellant occupied certain real estate in Steuben County, Indiana, belonging to the appellees. The second is for the purchase price specified in a written contract whereby the appellees sold the buildings, stock and equipment constituting an enterprise known as Allen Auto Parts in Angola, Indiana, to the appellant upon deferred payments none of which was due when the complaint was filed. Said complaint however was accompanied by a sufficient affidavit in attachment alleging, inter alia, (5) 'that the defendant has sold, conveyed or otherwise disposed of his property subject to execution, or suffered or permitted it to be sold, with the fraudulent intent to cheat, hinder or delay this creditor;' and (6) 'that the defendant is about to sell, convey, or otherwise dispose of his property subject to execution, with intent to cheat, hinder or delay this creditor.' When these grounds of attachment are shown our statute sanctions the commencement of a suit to collect a debt not yet due. Sec. 3-501, Burns' 1946 Replacement. Upon the filing of a satisfactory bond a writ of attachment was issued directed to the sheriff of Steuben County who levied the same on all property found on the lot upon which the appellant conducted his said business. The appellant filed answers joining issues on both paragraphs of the complaint and the affidavit in attachment, and upon trial the court found for the appellees on the first paragraph of their complaint in the sum of $55, and on the second paragraph thereof in the sum of $4,000, entered judgment accordingly and ordered the attached property sold to satisfy said judgment.

The appellant's brief signifies content with the finding and judgment on the first paragraph of the complaint and he makes no attack upon it. He challenges the decision on the second paragraph, however, mainly on the ground that the attachment, not being sustained by sufficient evidence, must fail thus leaving no basis for a suit on a debt not yet due.

The evidence most favorable to the court's decision may be summarized as follows: On March 2, 1953, the appellee John Allen and the appellant had a conversation in which the appellant intimated that, because of poor business, he couldn't pay his rent and the appellee said he supposed he would have to attach something to get his money. That night the appellant moved 15 to 18 automobiles, which he characterizes as junkers, across the street from his place of business and stored them on a vacant lot next to a filling station. In addition thereto, and at about the same time, he moved several carburetors and rebuilt generators in the trunk of his car to the home of a relative in Fort Wayne and stored half a dozen tires, some radiator hose and a small lathe in a private garage in Angola. The next day or there abouts said appellee saw the cars, so moved off the appellant's lot, and sought him out in an endeavor to get their differences adjusted. 'I tried to get Mr. Brockhaus to settle the thing and give me a new contract so that I would have an even chance, and go in business, that there was no need to do what he did. He said he would have no part of it and that he had sold the cars.' Thereupon this suit was commenced and the writ of attachment in question was issued. None of the property above mentioned was attached however and from time to time thereafter the appellant sold some of it including the old automobiles upon which he realized between $700 and $800. He moved the above property off the lot where he customarily did business because as he put it 'I went up and saw my lawyer and he said the best thing I could do was to move off everything I could * * * I had a lot of money involved in it and Mr. Allen said he would not accept the rent and he was going to serve the attachment.' There is some evidence that he sold a quantity of scrap iron to one Sam Levine of Kendleville before the writ of attachment was issued but this appears to have been done in the regular...