Eilts v. Moore

• Citation: 68 N.E.2d 795,117 Ind.App. 27
• Decision Date: 11 October 1946
• Docket Number: 17497.
• Parties: EILTS v. MOORE.
• Court: Court of Appeals of Indiana

68 N.E.2d 795

117 Ind.App. 27

EILTS v. MOORE.

No. 17497.

Appellate Court of Indiana, in Banc.

October 11, 1946

Appeal from Lake Circuit Court; Felix A. Kaul, Judge.

Action by Ethel Moore against Reinhard Eilts, wherein plaintiff recovered a money judgment against defendant, and, upon return of execution and alias execution nulla bona, plaintiff filed a motion for proceedings supplementary to execution. From a judgment adjudicating that defendant was sole owner of described realty and ordering it applied to the satisfaction of plaintiff's judgment, defendant appeals.

Judgment reversed with instructions to sustain defendant's motion for a new trial and for further proceedings consistent with opinion.

George E. Hershman and Oliver W. Hershman, both of Crown Point, for appellant.

Conroy & Glendening, of Hammond, for appellee.

CRUMPACKER Judge.

On April 29, 1929, the appellant and his son John, as 'joint tenants and to the survivor,' took title by warranty deed to Lots 14 and 15, Sunny Side Addition to Crown Point, Lake County, Indiana.

In 1930 or 1931, the appellant built a five room brick veneer house on the south half of these lots in which he has lived continuously to the present time. Shortly after the completion of this house his wife died and in 1933 or 1934 he married one Rose Ried to whom he is still married and with whom he lives in the premises above described. Rose had some financial means and, when the appellant's son John was married in 1935, she furnished him with money to build a house for himself and bride on the north half of the lots involved.

By reason of these changes in the marital status of the appellant and his son John it was concluded that the part of said real estate occupied by each of the owners should be set off to him in severalty. This was accomplished by the voluntary exchange of partition deeds on January 13, 1942, in which the appellant and his wife Rose were granted the south half of said lots and John and his wife Frances were granted the north half thereof.

On June 23, 1942, the appellee recovered a judgment for $1200 in the Lake Circuit Court against the appellant and thereafter caused execution to issue to the sheriff of Lake County who in due course, returned the same nulla bona. An alias execution was issued with like results and thereupon, on October 5, 1945, the appellee filed a motion in said court entitled 'Motion for Proceedings Supplementary to Execution.' On this motion the court ordered the appellant to appear before it at a designated time and place and 'then and there to answer concerning his property or income or profits within Lake County, Indiana.' No effort was made to join Rose Eilts, the appellant's wife, as a party to these proceedings and at no time did she ever appear in connection therewith.

The court found and adjudicated the appellant to be the sole owner of the real estate described in the partition deed of January 13, 1942, from John Eilts and wife to the appellant and his wife Rose and ordered the same 'applied to the satisfaction of plaintiff's judgment.'

From this judgment the appellant appeals and by proper assignment of error charges that the finding of the court, as above set out, is not sustained by sufficient evidence and is contrary to law.

It is well settled that the rules of civil procedure apply in proceedings supplementary to execution where the statute has not expressly, or by fair implication, indicated the procedure contemplated. Reuter v. Monroe, 1941, 110 Ind.App. 664, 49 N.E.2d 371. Sec. 2-219, Burns' 1933 provides that: 'Any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved.' This section of our statutes has been construed to mean that any person whose interest, under the issues, are adverse to the plaintiff, and who, of necessity must and will be affected by the judgment in the cause, must be made a party defendant. Bittinger v. Bell, 1879, 65 Ind. 445.

When we place the facts of the instant case against the background of this inescapable rule of law we are forced to conclude that the judgment herein is contrary to law. The purpose of this action was to discover property of any kind in Lake County belonging to the appellant and subject to execution. As the result of its investigation the court concluded that certain real estate, the record title of which...