Ettinger v. Robbins

• Decision Date: 16 February 1945
• Docket Number: 28056.
• Citation: 59 N.E.2d 118,223 Ind. 168
• Parties: ETTINGER v. ROBBINS et al.
• Court: Indiana Supreme Court

59 N.E.2d 118

223 Ind. 168

ETTINGER v. ROBBINS et al.

No. 28056.

Supreme Court of Indiana

February 16, 1945

Appeal from Municipal Court, No. 2, Marion County Harry R. Champ, judge.

R McDonald Kroger, of Indianapolis, for appellant.

Leo Rappaport, Herbert Wilson, and Alan W. Boyd, all of Indianapolis, Amici curiae.

GILKISON Judge.

Appellant recovered a judgment against appellee, Robbins, for $78 and costs, in Municipal Court No. 2 of Marion County, on October 14, 1943. On December 10, 1943, appellant filed his verified petition in garnishment against Robbins, and Curtiss-Wright Corporation. On December 20, 1943, appellant filed interrogatories in the latter cause to be answered by Curtiss-Wright Corporation, and Robbins was ordered by the court to appear on January 8, 1944, to answer as to his property, assets, income and wages, and Curtiss-Wright Corporation was ordered to answer the interrogatories before said date.

Trial of garnishment proceedings was had and on January 24, 1944, the court rendered judgment for the appellees and against appellant for costs, on said proceeding. Motion for new trial was overruled, an appeal was granted and perfected. The assignment of error is 'The court erred in overruling appellant's motion for new trial.' The motion for new trial is, 'that the decision of the court is not sustained by sufficient evidence and is contrary to law.'

The court's order to the defendant, Robbins, to appear on January 8, 1944, and answer as to his property, etc., was placed in the hands of the Sheriff of Marion County for service and return, and the Sheriff's return on the back thereof is as follows 'Came to hand December 30, 11:25 A. M. '43 and served this writ by leaving a true copy of the same at the last and usual place of residence of the within named Kenneth Robbins. Dec. 30, 1943.' This return is duly signed. The appellee, Robbins, did not respond to this notice, and the trial of the garnishment proceedings was had in his absence.

The evidence consisted of appellant's judgment; the execution issued thereon against the property of the appellee, Robbins, and that it was returned unsatisfied on December 16, 1943; the evidence of appellant's manager that to the best of his knowledge nothing has been paid on the judgment, and that the appellee, Robbins, is a resident of Marion County, Indiana, and he was a resident of said county on November 30, 1943; the interrogatories submitted by appellant to the appellee Curtiss-Wright Corporation and the verified answers thereto by said appellee, showing that one Kenneth Robbins is an employee on its payroll, receiving an average weekly income therefrom of $25.88, and that there are no garnishment orders in effect with said appellee against Robbins.

On this evidence the court below rendered its finding and judgment, which omitting caption and signature is as follows:

'Comes now the Court and overrules the Plaintiff's motion for an order in garnishment for the following reasons: (1) there is no evidence, other than the Garnishee Defendant's answers to interrogatories and the Plaintiff's verified petition that the Judgment Defendant has wages or income due from the Garnishee Defendant; (2) the answers to interrogatories are merely admissions of the Garnishee Defendant, binding upon the Garnishee Defendant but not binding upon the Judgment Defendant, and the verified petition of the Plaintiff is not sufficient evidence upon which to base an order; (3) the Court believes that such proceedings contemplate oral examination and testimony of parties or witnesses with an opportunity on the part of the Judgment Defendant to cross-examine the witnesses as in other civil proceedings; (4) there is not a sufficient showing in this case that the Judgment Defendant had personal knowledge of the proceedings since the Sheriff's return shows service of the order by leaving a copy of his last and usual place of residence and the Judgment Defendant did not appear as ordered by the Court.

'Finding and judgment for the Defendants, Kenneth Robbins and Curtiss-Wright Corporation, with costs against the Plaintiff.'

This is a proceeding supplementary to execution, brought under the statute, § 2-4401, § 2-4402, § 2-4403, and § 2-4406, Burns' 1933 (Supp.) and §§ 2-4404, 2-4405 Burns' 1933. It is a statutory proceeding. One seeking to avail himself of a statutory right must by his pleading and evidence bring himself fairly within its terms. Franklin v. Franklin, 1880, 71 Ind. 573, 575; Fink v. Cleveland, etc., R. Co., 1914, 181 Ind. 539, 543, 105 N.E. 116; Pabst Brewing Co. v. Schuster, 1914, 55 Ind.App. 375, 380, 103 N.E. 950.

It is the rule in this state that, 'When a new right or proceeding is created by statute, and a mode prescribed for enforcing it, the mode must be pursued, to the exclusion of all others.' Boyd v. Brazil Block Coal Co., 1898, 25 Ind.App. 157, 162, 57 N.E. 732, 734; Storms v. Stevens, 1885, 104 Ind. 46, 47, 3 N.E. 401; Ryan et al. v. Ray et al., 1886, 105 Ind. 101, 106, 4 N.E. 214.

§ 2-4403, Burns' 1933 (Supp.), Acts 1943 page 483, under which appellant brought this action, is as follows:

'After the issuing or return of an execution against the property of the judgment debtor or any one of the several debtors in the same judgment, and upon an affidavit that any person, corporation, municipal or otherwise, the state or any subdivision or agency thereof has property of such judgment debtor, or is or will be from time to time indebted to him in any amount, although the amount shall be determined from time to time as it becomes due and payable, which, together with other property claimed by him as exempt from execution, shall exceed the amount of property so exempt by law, such person, corporation, or any member thereof, or the auditor of state or auditing officer of the municipal corporations, subdivisions or agencies of the state, may be required to appear and answer concerning the same, as above provided: Provided, That such person or persons above named shall not be required to appear personally in court unless the judge of the court shall order the personal appearance in court of any such person or persons, and the court may order interrogatories to be submitted, and the same to be answered by such person or persons, and such interrogatories shall be submitted by the parties and a copy thereof, with blanks for answer, and a copy of the order of the court ordering the same answered shall be transmitted to the person, corporation, or any member thereof, or the auditor of state or auditing officer of the municipal corporations, subdivisions or agencies of the state required to answer the same by the clerk of the court, by registered mail, and on receipt of such interrogatories and such order, such person, corporation or any member thereof, or the auditor of state or auditing officer of the municipal corporations, subdivisions or agencies of the state shall answer such interrogatories and return the same to such clerk by registered mail or personally and such court shall have full power to compel answers thereto.'

It will be noted that this section does not provide for notice to the judgment defendant, but it does provide that the garnishee defendant or defendants 'may be required to appear and answer concerning the same, as above provided.' However, the appellant caused a copy of the court's order in the matter to be served on the judgment defendant by the Sheriff of the County, who served it 'by leaving a true copy of the same at the last and usual place of residence of the within named Kenneth Robbins.'

This proceeding is undoubtedly a civil action, under the repeated holdings of this Court. Hutchinson v. Trauerman, 1887, 112 Ind. 21, 24, 13 N.E. 412; Burkett et al. v. Holman, 1885, 104 Ind. 6, 10, 11, 12, 3 N.E. 406; Kissell et al. v. Anderson, 1881, 73 Ind. 485, 488, 489; Toledo, Wabash and Western Railway Co. et al. v. Howes, 1879, 68 Ind. 458. It clearly comes within the statute for the enforcement of private rights. § 2-101 Burns' 1933, among other things, provides:

'* * *; and there shall be but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a 'civil action'.'

Since the law authorizing the proceeding omits to provide the notice to be given the judgment defendant, we think the general rules of civil procedure apply even to supply an obvious omission with respect to notice in the statute under which the action is brought. Crume v Wilson, 1886, 104 Ind. 583, 586, 4 N.E. 169; Bass et...