Jaseph v. Kronenberger

• Decision Date: 19 October 1889
• Citation: 120 Ind. 495,22 N.E. 301
• Parties: Jaseph v. Kronenberger et al.
• Court: Indiana Supreme Court

120 Ind. 495

22 N.E. 301

Jaseph

v.Kronenberger et al.¹

Supreme Court of Indiana.

Oct. 19, 1889.

Appeal from circuit court, Vanderburgh county; William F. Parrett, Judge.

Action by David Kronenberger and Heiman Barnett against Simeon Jaseph, John C. Fares, and Larkin Fitzgerald. Defendant Jaseph appeals.

Alexander Gilchrist and Curran A. De Bruler, for appellant. James M. Shackelford and S. B. Vance, for appellees.

Berkshire, J.

The appellees Kronenberger and Barnett were plaintiffs in the court below. The appellant and the appellees Fares and Fitzgerald were the defendants.

The original or first paragraph of the complaint was filed and the action commenced on the 26th day of February, 1885. On the 9th day of May following a second paragraph of complaint was filed, and on the 26th day of October, 1886, a third paragraph was filed. The first paragraph is not in the record, nor is it necessary that it should be, for it was upon the second and third paragraphs that issues were joined, and the case tried.

The following is an abstract of the third paragraph of the complaint as we find it in the brief filed by counsel for the appellees Kronenberger and Barnett: “(1) That the defendants Larkin Fitzgerald and John C. Fares, by their promissory notes dated the 19th day of April, 1884, agreed to pay plaintiffs, twelve months therefrom, the sum of three hundred and forty dollars, with interest thereon at eight per cent. per annum from date until paid, with five per cent. attorney's fees. A copy thereof is filed with the first paragraph, and is referred to and made part thereof. No part of said note has been paid. (2) John C. Fares is only the surety of defendant Larkin Fitzgerald in the said notes. (3) That on the 1st day of July, 1884, the defendant Larkin Fitzgerald made a mortgage to defendant Fares on sundry articles of personal property therein mentioned, consisting of mules, horses, farming implements, and harness, and a crop of corn growing on two hundred and thirty-five acres of land in the county of Henderson and state of Kentucky, subject to a lien for rent, to secure said Fares in the payment of a note of even date therewith, for fifteen hundred dollars, due nine months after date, with interest at seven per cent; and also to secure said Fares from any loss by reason of any further advancements that might be made or any indorsements by said Fares for said Fitzgerald. (4) The said mortgage was made and acknowledged in Vanderburgh county, Ind., but at its date Fitzgerald resided in the county of Henderson and state of Kentucky, and the whole of the property embraced in said mortgage was situated therein, and the mortgage was there duly recorded according to the law of that state. (5) On the 9th day of December, 1884, the defendant John C. Fares made a mortgage of all the property owned by him to John Kistner and others, to secure sundry debts other than that of plaintiffs, which mortgage was duly acknowledged and recorded. The said debts exceeded in amount the value of said property, and the whole thereof has been exhausted in their payment. The said Fares is wholly insolvent, and has no property out of which plaintiff's said debt or any part thereof can be made. (6) On the 10th day of December, 1884, the said John C. Fares, by deed of that date, conveyed to the defendant Simeon Jaseph all of his property, being the same embraced in his said mortgage, above mentioned, in trust for the payment of his debts. The said trust was accepted by the said Jaseph on the 11th day of December, 1884, and said deed and acceptance were duly recorded. (7) The defendant Fitzgerald owned no property but that embraced in the said mortgage made by him to defendant Fares, and has not since that date owned any other property. (8) The said mortgage was made and was intended to secure the said Fares in any liability he might have incurred or might incur as surety for said Fitzgerald, including the note of plaintiffs, herein mentioned; and plaintiffs say they are entitled to be substituted to the rights of said Fares in said mortgage, and to have the same foreclosed for their benefit. (9) After the execution and acceptance of said deed of trust from John C. Fares to the defendant Jaseph, and while suit was pending in favor of the plaintiffs against said Fitzgerald in the Henderson circuit court in the state of Kentucky for the foreclosure of said mortgage, and to subject said mortgaged property to the payment of their said debt, the defendant Jaseph took possession of said property, and wrongfully removed it from the state of Kentucky, and now has the same in his possession in this county, or has wrongfully sold and converted the same to his own use. Said property was worth six thousand dollars. * * * (11) Plaintiffs pray judgment for their said debt, and that defendant Jaseph be required to account for the value of said property, and that so much thereof as may be necessary be applied to pay the judgment herein.”

It is not necessary to set out an abstract of the second paragraph, as it does not differ materially from the third.

On the 12th day of January, 1886, affidavits in attachment and garnishment were filed. Among other things, it was alleged in the affidavit in attachment that “the defendant Larkin Fitzgerald had sold, conveyed, or otherwise disposed of his property subject to execution, with the fraudulent intent to cheat, hinder, and delay his creditors;” and in the affidavit in garnishment, among other things, it is stated “that he [the affiant] has good reason to believe that Simeon Jaseph is indebted to the defendant Larkin Fitzgerald, and...