Levy v. Chittenden

• Citation: 120 Ind. 37,22 N.E. 92
• Parties: Levy et al. v. Chittenden et al.
• Decision Date: 18 September 1889
• Court: Supreme Court of Indiana

120 Ind. 37
22 N.E. 92

Levy et al.
v.
Chittenden et al.

Supreme Court of Indiana.

Sept. 18, 1889.

Appeal from circuit court, Elkhart county; James D. Osborne, Judge.

Action by Mark E. Chittenden and another, creditors of Fanny Levy, against Fanny Levy, Joseph Shackman, Jacob Goldberg, and Morrs, Herman, to set aside as fraudulent certain mortgages. Judgment was rendered for the plaintiffs, and the defendants appealed.

Baker, Defrees & Baker and Chamberlain & Turner, for appellants. J. M. Vanfleet, for appellees.

Berkshire, J.

This was an action brought by the appellees, who were creditors of the appellant Fanny Levy, to subject to sale certain personal property in payment and satisfaction of certain judgments which they held against the said appellant. Judgment was rendered in the court below for the appellees, and the appellants appeal, and assign error. In the complaint, as originally filed, it was alleged that the said appellant executed a mortgage upon said property to her co-appellant Joseph Shackman, on the 16th day of September, 1884, to secure a pretended indebtedness in the sum of $1,850, and to her co-appellant Jacob Goldberg, on the same day, a mortgage on said property to secure a pretended indebtedness in the sum of $750; and that on the 16th day of March, 1885, without foreclosure, the said personal property was sold to the appellant Morris Herman, for the sum of $1,200, who was a purchaser with notice; and that the money paid was furnished by the appellant Fanny, and was received and appropriated by the said appellant Shackman. The complaint contained other necessary and usual allegations found in a creditor's bill. The appellants filed but one paragraph of answer, which was a general denial. At the May term of the court the case was tried by the court and continued under advisement. On the thirty-first day of the October term of the same year the appellees moved the court for leave to file an amendment to their complaint in the words following: “That said mortgagor was left in possession of said goods with the right to dispose of the same; and that she did sell and dispose of four thousand dollars worth of said goods, and did receive more than enough money to have paid and satisfied said mortgages before said mortgagees took possession of or sold said goods.” The application for leave to make the amendment was supported by the following affidavit, omitting the formal parts: “Come now the plaintiffs and move the court for permission to make the following amendment [here the proposed amendment is copied, which is the same as...