Markley v. Murphy
| Citation | 102 N.E. 376,180 Ind. 4 |
| Decision Date | 24 June 1913 |
| Docket Number | 22,407 |
| Parties | Markley v. Murphy |
| Court | Supreme Court of Indiana |
From Superior Court of Madison County; J. A. Van Osdol, Special Judge.
Action by Brady Murphy against John M. Markley. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1391 Burns 1908, Acts 1901 p 565.)
Affirmed.
Herman F. Wilkie and Henrietta Wilkie, for appellant.
Campbell & Kidwell, for appellee.
Action by appellee against appellant for damages, resulting from alleged oppressive garnishment. The complaint avers that plaintiff was indebted to defendant, on account, for goods sold, in a certain amount; that plaintiff, defendant, and the American Sheet and Tin Plate Company, a corporation, were within the jurisdiction and subject to the process of the courts of Madison County; that the corporation was operating a manufacturing plant in West Virginia, but, at the same time was operating one in Madison County, and had an office, and officers and agents there; that plaintiff was a bona fide resident householder of Indiana, residing in the city of Elwood, and defendant was a bona fide resident of the same city; that plaintiff owned less than $ 300 worth of property, including wages due him from the corporation, and was unable to pay the debt owing to defendant, and had the right to claim such property as exempt from execution against defendant's claim; that plaintiff was a laborer in the employ of the corporation, at Elwood and the latter was indebted to him, in a certain sum for wages; that defendant, in violation of § 2669 Burns 1908, Acts 1905 p. 584, § 664, for the purpose of depriving plaintiff of his right to claim his wages as exempt from execution, assigned and transferred his claim against plaintiff to one Smith, of West Virginia, for the purpose of having the claim sued on and collected in West Virginia, by proceedings in attachment and garnishment; that such proceedings were had in a West Virginia court, that the corporation was compelled to and did pay defendant's claim from the wages due plaintiff from the corporation.
Appellant contends the court erred in overruling his demurrer to the complaint, because, as asserted, the law recognizes no cause of action, on the facts averred, and, because the statute (§ 2669 Burns 1908, Acts 1905 p. 584, § 664) is void, by reason of violating the provisions of §§ 1, 23, Art. 1, of the Constitution of Indiana, and the 14th amendment of the Federal Constitution. The statute in question (§ 2669 Burns 1908, supra), reads as follows: "Whoever, either directly or indirectly assigns or transfers any claim for debt against a citizen of Indiana for the purpose of having the same collected by proceedings in attachment, garnishment or other process, out of the wages or personal earnings of the debtors, in courts outside of the state of Indiana, when the creditor, debtor and person or corporation owing the money intended to be reached by the proceedings in attachment are each and all within the jurisdiction of the courts of the state of Indiana, shall, on conviction, be fined in any sum not less than twenty dollars nor more than fifty dollars." It is a substantial copy of § 2163 R. S. 1881. It is claimed that there is no cause of action here because the violation of a criminal act is a public wrong only, and cannot result in the creation of a private, actionable, wrong. In Kestler v. Kern (1891), 2 Ind.App. 488, 28 N.E. 726, the facts alleged were similar to those here averred, and the same questions, (aside from the constitutional one) relating to the sufficiency of the complaint, were there determined, as are here presented. In a learned opinion, by Crumpacker, J., the complaint was held sufficient. The following paragraph, from Cooley, Torts 7, was quoted with approval: "When the act or neglect which constitutes a public wrong is especially and peculiarly injurious to an individual, and obstructs him in the enjoyment of some right which the law has undertaken to assure, the offender may be subject to a double liability; he may be punished by the State and he may be compelled to remunerate the individual." In Kestler v. Kern, supra, it was contended, as here, that the doctrine declared in Uppinghouse v. Mundel (1885), 103 Ind. 238, 2 N.E. 719, barred any right of action, on a state of facts as there averred, but it was held (Reinhard, J., dissenting) that the latter case, properly distinguished, did not prevent a recovery on the facts alleged. In Baltimore, etc., R. Co. v. Adams (1903), 159 Ind. 688, 66 N.E. 43, 60 L. R. A. 396, it was held that the garnishee defendant was not liable to the original debtor; this court said: ...
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