Field v. Malone

• Decision Date: 10 June 1885
• Parties: Field and others v. Malone and others.
• Court: Indiana Supreme Court

102 Ind. 251

1 N.E. 507

Field and others

v.Malone and others.

Supreme Court of Indiana.

Filed June 10, 1885.

Appeal from Porter circuit court.

Bartholomew & Crumpacker, for appellants.

Wm. Johnston and Wm. Pagin, for appellees.

Elliott, J.

James R. Malone, one of the appellees, filed a complaint against a great number of defendants, among whom are Levi Z. Leiter, and the appellants, Marshall Field, Lorenzo G. Woodhouse, Henry Field, Henry J. Willing, and Joseph N. Field, who are described as composing the firm of Field, Leiter & Co. It is alleged that Malone was sheriff of Porter county from November, 1879, to November, 1880; that on the twenty-third day of January of the year 1880, John V. Farwell, Charles B. Farwell, William D. Farwell, Simeon Farwell, and John K. Harman, composing a copartnership in the firm name of J. V. Farwell & Co., commenced an action in the Porter circuit court upon a note against Joan M., John H., and Edwin M. Trevor, and supplemented such action with proceedings in attachment against the defendants therein, and at their suit a summons and writ of attachment were issued against the Trevors and delivered to Malone, as sheriff, which summons was duly served by reading, and the writ of attachment by seizing and taking into custody a general stock of goods in store, household goods, and live-stock; that this action was pending from the twenty-third day of January to the tenth day of June, 1880, when it was finally determined; that prior to the final judgment therein all of the defendants, being creditors of the Trevors, filed necessary papers, and became parties to the suit and proceeding in attachment of J. V. Farwell & Co.; that upon the final trial of such action judgments were rendered in favor of the creditors for the amount of their respective claims against the Trevors, but the finding and judgment of the court were against the attaching creditors upon the issues involved in attachment proceedings, and the attached property was ordered released from the levy; that afterwards 15 separate executions were issued upon the order of the creditors on such judgments against the goods and chattels of the Trevors, by virtue of which Malone levied upon and took into custody the property theretofore held under the writ of attachment, and held the same until the expiration of his term of office, on the third day of November, 1880, when he turned the executions and property, held by virtue of the same, over to his successor; that afterwards suits were brought to enforce mortgages against the property so levied upon, and the mortgage claims were adjudged prior liens to the executions, and the property was recovered by the mortgage creditors; that during the time Malone had custody of said property under the attachment and executions, he was required to and did pay out and expend $250 for storage, $248.55 for the care of, and for boxing and removing, said property; that his fees for serving summons in that case are $16.40, for serving subpœnas $6.70, for serving notices $6.50, and for care of horse $12; all of which were due and unpaid.

It is further alleged that since Malone's claim accrued, Levi Z. Leiter ceased to be a member of the firm of Field, Lieter & Co., and said copartnership is now known as the firm of Marshall Field & Co., but is composed of the same members as the old firm, except Leiter, and the new firm has assumed and agreed to pay the liabilities of the old firm.

At the time the complaint was filed, Malone also filed an affidavit and undertaking in attachment. On the twenty-fourth day of February, 1882, an affidavit was filed charging that the appellant Bartholomew was indebted to Marshall Field, Levi Z. Leiter, Lorenzo G. Woodhouse, Henry J. Willing, Henry Field, and Joseph N. Field, and upon this affidavit a writ was issued against the garnishee and duly served on him. On the fourth day of February, 1882, the following affidavit, upon which publication was asked, was filed, to-wit: “James R. Malone says on oath that he is plaintiff in the above-entitled cause, and that he has a good and meritorious cause of action against said defendants; that they are all indebted to him on account and for services performed by him as sheriff of Porter county, Indiana, for them in their suit against Joan M., John H., and Edwin Trevor, in the Porter circuit court; that the said defendants are all non-residents of the state of Indiana, and are necessary parties to this action.” Bartholomew, who was summoned as garnishee, appeared specially, and moved to quash the notice to the non-resident defendants on the ground of the insufficiency of the affidavit, and he also moved to quash the summons and dismiss the proceedings in garnishment.

After these motions were overruled, Bartholomew appeared and answered. The first paragraph of his answer is the general denial. The second alleged that at the time he was served with summons he was indebted to the firm of Marshall Field & Co.; that the firm was composed of Marshall Field, Lorenzo G. Woodhouse, John G. McWilliams, Joseph Field, and Harlow N. Higginbotham, and no other persons, and that he owed no other indebtedness to the defendants, or either of them; that the claims sued upon by the plaintiff are against the firm of Field, Leiter & Co., composed of Marshall Field, Levi Z. Leiter, Lorenzo G. Woodhouse, Henry J. Willing, and Joseph N. Field, and that Levi Z. Leiter is not a member of the firm of Marshall Field & Co., to which the defendant is indebted; and McWilliams and Higginbotham are members of the latter firm, and were not members of the firm of Field, Leiter & Co. The trial resulted in favor of the plaintiff, and appellants unsuccessfully moved for a new trial.

The affidavit upon which the notice of publication was ordered was not so defective as to render the notice ineffective. It states that there is a cause of action in the plaintiff against the defendants; shows that it is connected with a contract; and alleges that the defendants are non-residents of the state of Indiana. These are the essential facts which authorize notice by publication, and as they are embodied in the affidavit they gave the court jurisdiction to order the publication of the notice. The statute does not contemplate a full statement of the facts constituting the cause of action in the affidavit for publication, nor is there any reason for requiring such a statement. The affidavit is not intended to inform the defendant of the particular character of the cause of action urged against him, but its purpose is to exhibit to the court such facts as show that the case is one in which it is proper to give notice by publication. No useful purpose would be subserved by setting forth the facts at length. On the contrary, such a procedure would cumber the record and do no good at all.

In Trew v. Gaskill, 10 Ind. 265, it was held that it was not necessary for the affidavit to recite a cause of action, and this we regard as sound doctrine. It is true that in Fontaine v. Houston, 58 Ind. 316, it is said that “Trew v. Gaskill, 10 Ind. 265, is overruled as to this point;” but it is difficult, if not impossible, to ascertain the point of conflict between the two cases. In Fontaine v. Houston the affidavit contained no statement of any jurisdictional fact at all, except that the defendants were non-residents. There was, indeed,...