Laufer v. Laufer
| Decision Date | 04 April 1916 |
| Docket Number | No. 9043.,9043. |
| Parties | LAUFER v. LAUFER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Hancock County; Earl Sample, Judge.
Proceeding to set aside and quash an execution by John Laufer against Matilda Laufer. From a judgment that plaintiff take nothing by his pleading and that defendant recover costs, plaintiff appeals. Judgment affirmed.
Tindall & Tindall, of Greenfield, for appellant. R. Williamson and Robert L. Mason, both of Greenfield, for appellee.
This was a proceeding to set aside and quash an execution. The same was determined in the court below by the sustaining of the demurrer to a pleading styled a motion or complaint. Appellant abided the ruling against him, refused to plead further, and from a judgment that he take nothing by his pleading and that appellee recover costs, an appeal has been taken.
As to whether the court erred in sustaining the demurrer to the pleading is to be determined from the facts pleaded, which, in substance, are that on April 3, 1913, the necessary steps having theretofore been taken, appellee, Matilda Laufer, was granted a decree of divorce from appellant, John Laufer, with alimony in the sum of $4,000, to be paid $1,000 in 6, 18, 36, and 48 months, respectively, from the date of the granting of the decree. It was agreed between the parties and counsel representing them, respectively, that the alimony should be in said sum, and that the payment thereof should be in the manner stated; that appellant was the owner of 73 acres of unincumbered land in Hancock county, Ind., at the time of the value of $9,000, and that in consideration of the amount of the alimony, and by reason of it being a first lien upon appellant's land, the payments were arranged in the manner as aforesaid, and without interest until after maturity, and that appellant should not be required to give any security for any of the installments, the same being waived by appellee; that the decree was drafted in harmony with the agreement, and appellant relied upon the same and paid the costs of the action and the first installment of alimony, but on October 18, 1913, appellee wrongfully caused the clerk of the Hancock circuit court to issue an execution and place the same in the hands of the sheriff by which all of the installments of alimony other than the first were attempted to be collected; that a copy of the execution was made a part of the pleading, and on October 20, 1913, the sheriff served the execution upon appellant, and was threatening to levy upon his goods and chattels; that appellant was not in default under the terms of the agreement, and the execution should be quashed and set aside, and the sheriff be ordered and directed not to serve and levy the same.
[1] Before taking up the main question we will first dispose of appellant's contention that the failure of appellee to file a memorandum with her demurrer to appellant's complaint or motion, pointing out the infirmities of the pleading, precluded the court from passing upon the sufficiency thereof, and in sustaining the demurrer thereto under such circumstances, error was committed. Appellee's contention in this behalf is not well taken. The mere fact of sustaining a demurrer to a pleading in the absence of a memorandum being filed with a demurrer is not of itself sufficient to predicate error thereon; as it has been held that this court may look beyond the grounds stated in such memorandum to uphold the ruling of the trial court in its action, but will not look beyond the grounds stated in the memorandum to overthrow the ruling of the trial court. Boes v. Grand Rapids, etc., Ry. Co., 108 N. E. 174;Bruns v. Cope, 182 Ind. 289, 105 N. E. 471.
[2] The statute (section 1088, Burns' Ann. St. 1914) in reference to the granting of alimony provides that:
The exact language of the decree in so far as it is material to the question presented is:
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