Huseman v. Sims

Decision Date30 December 1885
Docket Number11,890
PartiesHuseman v. Sims et al
CourtIndiana Supreme Court

From the Dearborn Circuit Court.

The judgment is affirmed, with costs.

H. D McMullen, for appellant.

J. K Thompson, for appellees.


Howk J.

The sustaining of appellees' demurrer to his complaint, for the alleged want of sufficient facts therein to constitute a cause of action, is the only error of which the appellant complains in this court.

In his complaint the appellant Huseman alleged that the appellee Sims was the sheriff of Dearborn county and had been such for two years prior to October 1st, 1883; that, on the 5th day of October, 1882, the appellees Placke and Schulze obtained a judgment in the Dearborn Circuit Court for the sum of $ 1,059.25; that, of the money so recovered in such judgment, the sum of $ 750 was due as rent on a written lease for certain real estate, theretofore leased to appellant by the appellees Placke and Schulze, and the sum of $ 250 of such judgment, including costs, was for damages assessed against appellant for the unlawful detention of such real estate after the expiration of such lease; that the appellees levied upon and sold, of appellant's property, more than three hundred dollars' worth, over and above the property herein claimed as exempt; that, on the 6th day of October, 1882, the appellees Placke and Schulze caused to be issued out of the clerk's office of such court an execution for the collection of such judgment; that such execution was delivered to sheriff Sims, on the 6th day of October, 1882, and, by virtue of such execution, sheriff Sims levied on all of appellant's property; that the appellant filed his schedule and demanded that the property specified therein, after deducting the said sum of $ 250 for damages for unlawful detention, be set off to him as exempt from levy and sale under such execution, which the appellees refused to do, but proceeded to advertise such property and sold the same; that the appellant was, at the time of such levy and sale, and had been since, a resident householder and citizen of the county of Dearborn, in the State of Indiana, and was and had been entitled to exemption. A copy of the appellant's schedule and appraisement was filed with and made part of the complaint. And the appellant said, that, by means of the premises, he was damaged in the sum of $ 600, for which and for all proper relief he demanded judgment.

The joint demurrer of all the appellees to appellant's complaint was sustained by the court. The only question we are required to consider and decide may be thus stated: Does the appellant's complaint, the substance of which we have given almost in his own language, state facts sufficient to constitute a cause of action in his favor and against the appellees or either of them?

In discussing the sufficiency of appellant's complaint appellees' learned counsel says: "The complaint, we submit, is manifestly bad for two reasons, namely:

"1st. The execution was issued on a judgment, not founded on contract, but on tort, and no exemption is allowed; and,

"2d. The complaint does not show that the appellant entitled himself to claim an exemption.

"Considering these objections to the complaint in the inverse order of their statement, the so-called exhibit filed with the complaint, to wit, the copy of appellant's schedule and appraisement, is not a proper exhibit, and hence is no part of the complaint, and can not be looked to in...

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