Faulkner v. Brigel

• Decision Date: 10 April 1885
• Docket Number: 11,821
• Citation: 101 Ind. 329
• Parties: Faulkner et al. v. Brigel et al
• Court: Indiana Supreme Court

101 Ind. 329

Faulkner et al. v. Brigel et al

No. 11,821

Supreme Court of Indiana

April 10, 1885

From the Jay Circuit Court.

D. T Taylor, J. M. Smith and T. Bailey, for appellants.

W. A Thompson and J. W. Thompson, for appellees.

OPINION

Colerick C.

This action was instituted by the appellees upon an attachment bond executed by the appellants. It appears by the averments in the complaint, that the appellant Faulkner, on the 21st day of May, 1879, commenced an action in the Jay Circuit Court against the appellees for damages, and with his complaint filed an affidavit for a writ of attachment, in which it was recited that the appellees were indebted to him in the sum of $ 3,500, the nature of which indebtedness was fully stated; that the claim was just, and that he ought to recover said sum, and that the appellee Brigel was a non-resident of the State of Indiana, and also then filed a written undertaking, as required by the statute in such cases, executed by him, as principal, and by his co-appellants McKinney and Dougherty as sureties. The body of the undertaking, so filed, was as follows: "We undertake that the plaintiff shall duly prosecute his proceeding in attachment in this action, and pay to the defendants all damages which he may sustain if the proceedings of the plaintiff shall be wrongful and oppressive." On the filing of the complaint, affidavit and undertaking, the clerk of the court approved the undertaking, and issued a writ of attachment against both of the defendants in the action, although the affidavit upon which the writ was based related to one of the defendants only, and against whose property alone the writ should have been issued. Under and by virtue of the writ so issued the sheriff of Jay county, to whom it was directed, seized and took possession of a stock of goods owned by the defendants jointly as partners, and kept and detained the same, with the store-room in which the property was located, until the 29th day of May, 1879, when the defendants obtained a release of the property by executing to the sheriff a delivery bond therefor. It was averred in the complaint in this action, that the attachment proceeding was afterwards heard and determined by the court, and resulted in a finding and judgment in favor of the defendants therein, and it was also averred that said proceeding in attachment was wrongful and oppressive, for reasons therein stated, and that the appellees had been damaged thereby, etc. Wherefore they prayed judgment, etc.

Separate demurrers by each of the appellants to the complaint, on the ground that the same did not state facts sufficient to constitute a cause of action, were overruled, and thereupon the appellants McKinney and Dougherty severally filed separate answers to the complaint in two paragraphs each. These two answers were, in all respects, alike. The first paragraph of each was a general denial; while the second, purporting to be, as it was, a partial answer to the complaint, averred, in substance, that each of said two appellants had executed the undertaking, upon which the action was founded, as the surety of the appellant Faulkner, and that as to the appellee Sterling it was executed without any consideration whatever. Demurrers were sustained to the second paragraph of the answers.

The appellant Faulkner filed a separate answer to the complaint in four paragraphs: 1. A general denial. 2. Averring, as a partial answer to the complaint, that the undertaking as to the appellant Sterling was executed without any consideration. 3. Averring, in substance, that he did not cause the writ of attachment to be issued against the property of the appellee Sterling, nor did he direct the sheriff to levy the same upon his property, or assist the sheriff in doing so, or consent to the same, and that neither he, nor any one else for him, made or filed with the clerk of said court an affidavit authorizing him to issue a writ of attachment against the property of Sterling, and that if any such property was seized by the sheriff under the writ which was issued, it was done without his direction, knowledge or consent, and that if the clerk issued a writ of attachment against the property of Sterling, it was without his direction, knowledge or consent. 4. Averring, in substance, the same facts as those set forth in the third paragraph. The...