Kelley v. Bell

• Decision Date: 21 April 1909
• Docket Number: 21,450
• Citation: 88 N.E. 58,172 Ind. 590
• Parties: Kelley et al. v. Bell
• Court: Indiana Supreme Court

88 N.E. 58

172 Ind. 590

Kelley et al. v. Bell

No. 21,450

Supreme Court of Indiana

April 21, 1909

Rehearing Denied July 2, 1909.

From Steuben Circuit Court; Emmet A. Brattan, Judge.

Suit by George Bell against Charles Kelley and others. From a decree for plaintiff, defendants appeal. (Transferred from Appellate Court under § 1394 Burns 1908, cl. 2, Acts 1901, p. 565 § 10.)

Affirmed.

Charles E. Scott, Stephen A. Powers, Frank M. Powers and E. V Harris, for appellants.

P. V. Hoffman, C. M. Phillips and Cyrus Cline, for appellee.

OPINION

Monks, J.

On January 28, 1904, appellee recovered a judgment against appellant Charles Kelley in the Noble Circuit Court, for $ 5,018.33, on which execution was issued January 30, 1904, to the sheriff of Dekalb county, and return of nulla bona was made thereon February 5, 1904. On February 8, 1904, appellee brought this action in the Dekalb Circuit Court, supplementary to execution under our statutes, against said judgment defendant Charles Kelley and his coappellants, his son Herschel C. Kelley and his daughter, Mary G. Williams, said Charles Kelley residing in Dekalb county, to subject $ 27,000 in United States registered bonds, averred to be the property of said Charles Kelley, but in the possession of his coappellants, to the payment of said judgment.

The venue was changed to the court below, where there was a trial by jury, verdict for appellee, and, over motions in arrest of judgment, for a new trial, and for a venire de novo, judgment was rendered against appellants.

The first, fourth and fifth paragraphs of complaint seek to set aside the transfer of certain registered bonds of the United States, known as "two per cent consols," maturing in 1930, made by the judgment defendant, Charles Kelley, to his coappellants, his son and daughter, and subject the same to the payment of said judgment, on the ground that the same were transferred by him to them without consideration, and with the fraudulent intent and purpose to cheat, hinder and defraud the creditors of said Charles Kelley, including this appellee.

The second paragraph of the complaint seeks to accomplish the same object, on the ground that said bonds were a gift causa mortis from said Charles Kelley to his said son and daughter; that said Charles Kelley recovered from said sickness, and has received the interest on said bonds, and they are his property and liable for his debts, but have been held, since his recovery, in secret trust by his coappellants to avoid the payment of his debts, including appellee's judgment.

The third paragraph seeks to subject said bonds to the payment of said judgment, on the ground that they are the property of said judgment defendant, Charles Kelley, held in trust for his use and benefit by his coappellants, and are therefore liable for his debts.

The sixth paragraph of the complaint seeks to subject money and choses in action, the property of said judgment defendant, held in trust for him by his coappellants, to the payment of said judgment.

Section 7480 Burns 1908, § 4921 R. S. 1881, is applicable to said second, third and sixth paragraphs of the complaint.

Appellants say in their brief that the allegation in each paragraph of the complaint is that the execution issued to the sheriff of Dekalb county, where the defendant Charles Kelley resides; that the same is insufficient, and that the demurrers thereto should have been sustained to said paragraphs, because the averment should be that the execution issued to the sheriff of the county where defendant Charles Kelley resided. If the judgment defendant is a resident of the State, as in this case, the statute requires that the execution be "issued to the county where he resides," not to the county where he has resided some time in the past. § 858 Burns 1908, § 815 R. S. 1881; Fowler v. Griffin (1882), 83 Ind. 297, 299; Burkett v. Bowen (1889), 118 Ind. 379, 381, 21 N.E. 38; McKinney v. Snider (1888), 116 Ind. 160, 161, 18 N.E. 526; Pouder v. Tate (1887), 111 Ind. 148, 149, 12 N.E. 291. The allegation in each paragraph of the complaint objected to by appellants was sufficient.

Appellants next insist that each paragraph of the complaint is bad, because it is averred that "after the time," instead of "at the time," of the transfer of said bonds, Charles Kelley, the judgment defendant, did not have sufficient property to pay his debts; that the allegation "after the time" does not show when or how long after said transfer it was before he did not have sufficient property, etc. Said Charles Kelley may have had sufficient property to pay his debts before he transferred said bonds, but may not have had sufficient after the same were transferred. The words "after the time" had relation to and commenced the moment the transfer was made, and mean, in the connection in which used, "from the time" the transfer was made. With this meaning the same is not open to the objection urged.

Said objection has no application to the second, third and sixth paragraphs, which do not seek to set aside the transfer of said bonds as fraudulent, but to subject them to the payment of the judgment, because they are the property of the judgment defendant, Charles Kelley, and liable for his debts, although held in trust for his use and benefit by his coappellants. Plunkett v. Plunkett (1888), 114 Ind. 484, 488-491, 16 N.E. 612; Shew v. Hews (1891), 126 Ind. 474, 26 N.E. 483; New v. Sailors (1888), 114 Ind. 407, 412-413, 5 Am. St. 632, 16 N.E. 609; Stout v. Price (1900), 24 Ill.App. 360, 365-368, 55 N.E. 964.

It follows that the objections made to each paragraph of the complaint are not tenable.

Even if the paragraphs of the complaint, which seek to set aside the transfer of said bonds on the ground that the same were transferred by said Charles Kelley with the fraudulent intent to cheat and defraud his creditors, were insufficient, as claimed by appellants, the action of the court in overruling the demurrer thereto was harmless, and would not be a reversible error, for the reason that the facts specially found by the jury in answer to interrogatories showed that the verdict was not on said paragraphs, but upon the paragraphs alleging that said bonds were the property of said Charles Kelley, and held in trust by his coappellants for his use. Baltimore, etc., R. Co. v. Roberts (1903), 161 Ind. 1, 7, 8, 67 N.E. 530; Lowry v. Downey (1898), 150 Ind. 364, 365, 50 N.E. 79, and cases cited; Bedford Quarries Co. v. Turner (1906), 38 Ind.App. 552, 557, 77 N.E. 58, and cases cited.

Appellants insist that the court erred in submitting said case to the jury for trial, and in not submitting the same to the court for trial. It is assigned as independent error in this case (1) that the court erred in submitting the case to the jury for trial; (2) that the court erred in refusing to submit the case to the court for trial. These assignments of error are set out in appellants' brief as "errors relied upon for reversal," in conformity with the fourth subdivision of rule twenty-two of this court. These assignments of error present no question, for the reason that such question can only be presented by assigning the same as causes for a new trial, which, if overruled, is presented in this court by the assignment of error that the court erred in overruling the motion for a new trial. Childers v. First Nat. Bank (1897), 147 Ind. 430, 436, 46 N.E. 825, and cases cited; Huffmond v. Bence (1891), 128 Ind. 131, 137, 27 N.E. 347; Horlacher v. Brafford (1895), 141 Ind. 528, 532, 40 N.E. 1078; Zimmerman v. Gaumer (1899), 152 Ind. 552, 554, 555, 53 N.E. 829.

The record shows that a motion in arrest of judgment was made and overruled before the motion for a new trial was filed. It is the law in this State that, where the motion in arrest of judgment preceded the motion for a new trial, the right to move for a new trial is cut off, and cannot be considered. Yazel v. State (1908), 170 Ind. 535, 84 N.E. 972, and cases cited; Cincinnati, etc., R. Co. v. Case (1890), 122 Ind. 310, 316, 23 N.E. 797, and cases cited.

Appellants insist that said motion in arrest "is not a motion in arrest," because the grounds therefor set out in said motion point out defects in the verdict and not in the complaint. The fact that all the grounds stated in a motion in arrest are insufficient, or that all the defects pointed out cannot be reached by such motion, does not change its character. It is true that the first, second and third grounds stated in said motion attack the verdict, and that a verdict if defective cannot be reached by a motion in arrest. Potter v. McCormack (1891), 127 Ind. 439, 440, 441, 26 N.E. 883.

The fourth ground, however, is that the United States bonds in controversy "are not subject to the order of this court * * * and are not subject to proceedings supplementary to execution." This ground goes to the sufficiency of each paragraph of the complaint which seeks to subject said bonds to the payment of said judgment.

Appellants having, by first moving in arrest of judgment, waived their right to move for a new trial, no question is presented by the error assigned calling in question the action of the court in overruling the motion for a new trial.

After the return of the verdict, appellants severally objected to the court's rendering judgment on the verdict, and moved to set aside the verdict, which motions the court overruled, and these rulings are assigned for error here.

Said motions were properly overruled by the court, because the reasons assigned therefor were either causes for a new trial...