Hofmann v. State
| Decision Date | 26 February 1935 |
| Docket Number | 26259 |
| Citation | 194 N.E. 331,207 Ind. 695 |
| Parties | HOFMANN v. STATE |
| Court | Indiana Supreme Court |
Appeal from Newton Circuit Court; Moses Leopold, Judge.
Charles E. Daugherty and George P. Rose, both of Gary, for appellant.
Philip Lutz, Jr., Atty. Gen., and Joseph P. McNamara, Deputy Atty Gen., for the State.
ROLL Judge. Appellant,
Andrew Hofmann, who was the coroner of Lake county, Ind., was adjudged guilty of contempt of the Newton circuit court for a willful disobedience of the orders of said court, in that he refused to serve a lawful process issued by the Newton circuit court. The action was commenced by the filing of a sworn statement in the nature of an information whereupon appellant was ordered to appear on the 10th day of June, 1932, and show cause why he should not be attached and punished for contempt of court. Appellant did appear and filed his verified answer in discharge of the rule. The court found said answer insufficient, and adjudged appellant guilty of contempt. From this judgment he appeals.
The record in this case shows substantially the following facts:
The sworn statement or information filed herein alleged in substance, that on May 16, 1927, one Alexander Cassell recovered a judgment in the Newton circuit court against Roy F. Holley in the sum of $ 1,220 and the cost of the action and interest on said judgment at the rate of 8 per cent. per annum. That on April 26, 1928, there was paid on said judgment $ 509.17, leaving a balance due of $ 985.66. That on January 3, 1931, execution was issued on said judgment to the coroner of Lake county, and was by him returned on January 21, 1931, unsatisfied. That on March 28, 1931, Alexander Cassell, the judgment plaintiff, filed in the Newton circuit court his affidavit under and by virtue of section 889 Burns' Ann. St. 1926, Acts 1925, p. 204, c. 61 (), and proceedings were had thereunder, proof the Roy F. Holley was the duly elected and acting sheriff of Lake county, Ind., was made, and that the salary, earnings, and wages due the sheriff of Lake county for the years 1931 and 1932 would be due and owing to said Roy F. Holley by reason of his said office. That satisfactory proof of all the facts stated in said affidavit was made, whereupon the court entered an order, directing that an execution issue against the debts earnings, salary, wages, and income or profits of said Holley as described in the affidavit, to the auditor of said Lake county, Ind., and to the board of commissioners of said Lake county, Ind., and directed the same for service to the coroner of said Lake county, Ind., who forthwith served the same on the parties named. That the said auditor and said commissioners refused to pay or turn over to the coroner an amount not to exceed 10 per centum of any such debts, earnings, etc., of said sheriff or any amount whatever, and informed him that they had no money of any kind belonging to said sheriff. Whereupon said coroner returned said execution to the Newton circuit court unsatisfied.
That afterwards, the date of the filing of the same is not disclosed by the record, Alexander Cassell filed another affidavit in garnishment, under said section 889, supra, and similar to the one filed on March 28, 1931, and in addition to the facts therein alleged he stated that there was some doubt on the part of the auditor and board of commissioners of Lake county as to the jurisdiction of the Newton circuit court to invoke the Garnishee Law, being section 889 et seq., Burns' Ann.St. 1926; and that said public official should be notified to appear on April 3, 1931, to be heard as to the jurisdiction of said court, or on any other question which said officials might desire to present with reference to this proceeding. That said officials did appear by counsel and filed a demurrer to the pleading filed by said Cassell, which was argued on April 5, 1931. The court overruled the demurrer, and Roy F. Holley duly excepted to said ruling. The cause was then submitted to the court, who entered a finding to the effect that, after hearing the evidence and being fully advised in the premises, finds that the averments of the affidavit and petition are true and that the prayer thereof should be granted. Then the court entered judgment that an execution be issued from the Newton circuit court to the coroner of Lake county, Ind., against the salary, etc., due Roy F. Holley, sheriff of Lake county, Ind., or which may become due him to an amount equal [207 Ind. 698] to 10 per cent. of said salary, wages, and earnings, etc., and the further sum of $ 3 cost, and that said execution be a continuing lien upon said salary, earnings, etc., until said judgment was fully paid and satisfied, and directed that said execution be served upon the auditor, treasurer, and board of county commissioners of Lake county, Ind. To the entering of this order Roy F. Holley excepted. That on the 5th day of February, 1932, the clerk of the Newton circuit court delivered to Andrew Hofmann, who was then the duly elected and acting coroner of Lake county, a copy of said order so made as above stated to execute as above directed. That the said Andrew Hofmann failed, neglected, and refused to levy said execution and obey the mandate of said order of the Newton circuit court, and on March 17, 1932, returned the same unsatisfied.
Upon this information, the judge of the Newton circuit court ruled appellant to appear on June 10, 1932, to show cause, if any he had, why he should not be attached and punished for contempt of court. This order was duly served upon appellant, who appeared and filed answer, which in substance alleged the following facts:
That on or about February 1, 1932, this court ordered an execution issued to the coroner of Lake county to be served on the board of county commissioners, the auditor, and treasurer of Lake county, against the salary, earnings, and wages of one Roy F. Holley, sheriff of Lake county, Ind. That said execution was issued from this court and delivered to Andrew Hofmann, coroner of Lake county, Ind. That on February 23 1932, Charles Baran, Richard Bielefield, and James Black, commissioners of Lake county, Ind., and Roy F. Holley, as plaintiffs, caused an action to be filed in the Lake circuit court, at Crown Point, Ind., against Andrew Hofmann, coroner of Lake county, Ind., and William E. Whitaker, auditor of Lake county, as defendants, whereby the plaintiffs sought to have the defendants restrained from levying the execution which was issued from the Newton circuit court against the wages and earnings of Roy F. Holley, and that notice of said suit was served upon the defendants. That on February 29, 1932, the date set for hearing, one Roy Cummings, an attorney, appeared in the Lake circuit court, as amicus curiae, and the case was duly submitted to the court, and the court entered a decree perpetually enjoining and restraining Andrew Hofmann, coroner of Lake county, and his deputies, from in any way levying, or seeking to levy, the execution upon the county of Lake for any salaries which might be...
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