Burkett v. Bowen

• Decision Date: 09 December 1885
• Docket Number: 12,266
• Citation: 3 N.E. 768,104 Ind. 184
• Parties: Burkett et al. v. Bowen
• Court: Indiana Supreme Court

3 N.E. 768

104 Ind. 184

Burkett et al. v. Bowen

No. 12,266

Supreme Court of Indiana

December 9, 1885

From the Fulton Circuit Court.

The judgment is reversed with costs, and the cause is remanded with instructions to sustain the motion for a new trial, and for further proceedings not inconsistent with this opinion.

M. R. Smith and G. W. Holman, for appellants.

J. Rowley and M. A. Baker, for appellee.

OPINION

Howk, J.

This was a proceeding, by the appellee against the appellants, supplementary to execution. The controlling question in the case is, whether or not such a proceeding is a civil action within the meaning of sections 412 to 417, R. S. 1881, which authorize and provide for a change of venue or a change of judge. This question was carefully considered by this court in the recent case of Burkett v. Holman, ante, p. 6, and the conclusion was there reached that a proceeding supplementary to execution is a civil action within the meaning of the sections above cited of our civil code. Upon the authority of the case cited, this cause must be decided as that was; and we therefore hold, in the case at bar, that the trial court erred in overruling appellant's motion for a change of judge. This ruling was assigned by appellants as cause for a new trial in their motion therefor, and for this cause the motion for a new trial ought to have been sustained.

Upon the general question as to what must be considered "civil actions" within the scope and meaning of the statutes of this State, we cite also the case of Powell v. Powell, ante, p. 18.

The judgment is reversed with costs, and the cause is remanded with instructions to sustain the motion for a new trial, and for further proceedings not inconsistent with this opinion.