Cushman v. Gephart

• Decision Date: 23 April 1884
• Docket Number: 10,925
• Citation: 97 Ind. 46
• Parties: Cushman et al. v. Gephart
• Court: Indiana Supreme Court

97 Ind. 46

Cushman et al. v. Gephart

No. 10,925

Supreme Court of Indiana

April 23, 1884

Petition for a Rehearing Overruled Sept. 20, 1884.

From the Wayne Circuit Court.

C. C Binkley, D. W. Chambers and J. S. Hedges, for appellants.

C. H Burchenal, for appellee.

OPINION

Franklin, C.

Appellee commenced proceedings supplementary to execution against appellant Cushman, alleging that Haynes, Spencer & Co. was indebted to said Cushman.

A demurrer was overruled to the complaint, and answers were filed denying the alleged indebtedness, and in addition thereto Haynes, Spencer & Co. filed a petition setting forth certain facts, which petition substantially stated that before the commencement of these proceedings, it (being a corporation) had purchased lumber of said Cushman of the value of $ 1,293.95, which it had not paid; that before notice of these proceedings was served upon it, notice was given to it that said Cushman had assigned the account for said lumber to one Binkley for the use of Daniel W. Bouslog and Riley Chamness, and asking that said Bouslog and Chamness be required to interplead with said appellee, to determine who is entitled to the proceeds of said lumber. Bouslog appeared and set up an indebtedness to him from appellant Cushman in the sum of $ 996, for the same lumber which he had previously sold to said Cushman, and the assignment by Cushman to Binkley, for his use, of the account on Haynes, Spencer & Co.; that the assignment of said account, the reception thereof by Binkley for his use, and his acceptance of the arrangement, were all before the commencement of these proceedings. There was no appearance for Chamness.

There was a trial by the court; at the request of Cushman the court made a special finding, and stated its conclusions of law. Appellants moved the court to correct its special finding, which was overruled; they then excepted to the conclusions of law, and, over a motion for a new trial, judgment was rendered for the appellee.

Cushman and Bouslog have appealed, making Haynes, Spencer & Co. a co-appellant. The following errors have been assigned, jointly and severally:

1st. In overruling Cushman's demurrer to complaint.

2d. Error in conclusions of law.

3d. Overruling motion to correct special findings.

4th. Overruling motion for a new trial.

The substance of the verified complaint is as follows: On the 8th day of October, 1877, the plaintiff recovered a judgment in the circuit court of Delaware county, Indiana, against said Cushman for $ 937.99, which remained due and unpaid, then amounting to $ 1,229.51. On the 14th day of December, 1882, an execution was issued thereon to the sheriff of Wayne county, in which county said Cushman then lived, which said execution was wholly unsatisfied, and said Cushman had property at said county which he wrongfully refused to apply to the payment of said judgment, but which can not be reached or levied on by such execution, and that said Haynes, Spencer & Co., a corporation located and doing business in said county, was indebted to the said Cushman in a large amount, to plaintiffs unknown, but which, together with all other property claimed by said Cushman as exempt from execution, exceed the amount of property so exempt by law from execution. Wherefore, etc.

The demurrer to the complaint is for the want of sufficient facts.

The remedy of proceedings supplementary to execution, given by statute, is in many respects a substitute for a creditor's bill; and a complaint, in order to be sufficient, ought to state some facts showing a necessity for resorting to these extraordinary proceedings. Burt v. Hoettinger, 28 Ind. 214.

The 815th section, R. S. 1881, authorizes such proceedings against the execution defendant when there has been a return of the execution unsatisfied. Under this section it would certainly be necessary to aver such a return of the execution, and such a return would be a sufficient reason for the supplementary proceedings. The 816th section provides for similar proceedings before the execution is returned and while it is in the hands of the sheriff. The 819th section provides that "after the issuing or return of an execution," such proceedings may be had against third parties who are indebted to the execution defendant, or may have property in their possession belonging to him.

It seems to us that, in order to maintain these proceedings, the complaint ought to show, either that the execution had been returned nulla bona, or, if not returned, that the execution defendant did not have within the county other property subject to execution sufficient to satisfy the execution.

In the case of Dillman v. Dillman, 90 Ind. 585, it was held that in proceedings supplementary to execution, if the affidavit failed to show some necessity for the application, it was insufficient. But it is insisted by appellee that appellant Cushman, the execution defendant, has no such interest in these proceedings as enables him to contest these questions.

This complaint is based upon both the last named sections, and includes the execution defendant and his debtor. This court has frequently held that in such proceedings against the execution defendant's debtor, the execution defendant is a necessary party. But in this case the plaintiff has made him a necessary party by charging him with having property in the county subject to execution, which he refuses to appropriate in the payment of the judgment, and calling upon him to answer as to such property. Under such a complaint appellee is certainly estopped from denying appellant Cushman's interest in the matters in controversy.

It will be observed that the phraseology of the 816th section, in relation to the affidavit required from the plaintiff or other person in his behalf, is, that it shall be to the effect, etc. It does not specify the language to be used, or perhaps, specify all the...