Harper v. Behagg

• Decision Date: 19 February 1896
• Citation: 42 N.E. 1115,14 Ind.App. 427
• Parties: HARPER et al. v. BEHAGG.
• Court: Indiana Appellate Court

14 Ind.App. 427
42 N.E. 1115

HARPER et al.
v.
BEHAGG.

Appellate Court of Indiana.

Feb. 19, 1896.

Appeal from circuit court, Vanderburgh county; R. D. Richardson, Judge.

Action by John Behagg against Sophia Harper. Plaintiff had judgment, and from an order, made on supplementary proceedings, applying thereon a debt in favor of defendant against one Miller, defendant and said Miller appeal. Reversed.

Hornbrook & Wheeler, for appellants. James T. Walker and James T. Cutter, for appellee.

GAVIN, C. J.

Appellee obtained a judgment before a justice of the peace for less than $50. A transcript of this judgment was filed in the Vanderburgh circuit court, upon which execution was issued October 5, 1895, and returned by the sheriff, “No property found.” Appellee thereupon filed in said court his affidavit, setting up these facts, and that appellant Miller, of said county, was indebted to the judgment defendant in a large sum, to wit, about $1,900, etc. Wherefore he asked to have the same applied upon the judgment. To the complaint appellant Harper filed her separate demurrer, which was overruled, with an exception. Upon a hearing, the court found in favor of appellee, and that Miller was indebted to her $1,550, and ordered him to pay to the clerk, from the first moneys due, which would be on January 2, 1896, the full amount of said judgment and costs.

The proceeding is one known as “supplementary to execution,” under section 1831, Rev. St. 1894 (section 819, Rev. St. 1881). The judgment rendered is a final judgment, absolute and unconditional, ascertaining and determining the rights of the parties as to the matters in issue, and adjudging that Miller must pay a fixed sum at a specified date. The numerous cases of appeals in proceedings of this character settle, beyond question, that appeals will properly lie from such judgments. The case of Pursell v. Papenheimer, 11 Ind. 327, might be authority for holding the judgment below to be erroneous by reason of the nonmaturity of the debt but it certainly does not sustain appellee's position that it is not final nor appealable, since an appeal was there taken, and the cause reversed. The proceeding cannot be regarded as a continuation of the original action, or a mere incident to it. While it is true that it is in aid of the original judgment, and its purpose is to compel the payment of that judgment, the adjudications in this state have definitely determined that it is an independent action, and not a part of the original case. Pounds v. Chatham, 96 Ind. 342;Railway Co. v. Summers, 113 Ind. 10, 14 N. E. 733. Although, under the Code, since 1881, the mode of procedure is summary, and without formal issues, other than the complaint or affidavit, and demurrer or motion to dismiss or strike out, to test its sufficiency (section 834, Rev. St. 1894 [section 822, Rev. St. 1881]), yet it is a civil action (Burkett v. Holman, 104 Ind. 6, 3 N. E. 406;Baker v. State, 109 Ind. 47,9 N. E. 711;Hutchinson v. Trauerman, 112 Ind. 21, 13 N. E. 412;Balz v. Benninghof, 5 Ind. App. 522, 32 N. E. 595). In various respects these proceedings have been held to possess the attributes of the ordinary civil action, so far as is in harmony with the special provisions of the Code governing them. Thus, they may be commenced in a county other than that in which the judgment was rendered. Cooke v. Ross, 22 Ind. 157. Changes of venue are permitted in them. Burkett v. Holman, supra; Burkett v. Bowen, 118 Ind. 379, 21 N. E. 38;Kissell v....