Mitchell v. Bray
| Decision Date | 21 April 1886 |
| Docket Number | 12,486 |
| Citation | 6 N.E. 617,106 Ind. 265 |
| Parties | Mitchell v. Bray et al |
| Court | Indiana Supreme Court |
From the Morgan Circuit Court.
The judgment is affirmed, with costs.
J. H Jordan and O. Matthews, for appellant.
G. A Adams and J. S. Newby, for appellees.
This appeal involves the ruling of the circuit court in sustaining a demurrer to a verified complaint in a proceeding supplementary to execution.
The complaint alleged that the appellant recovered a judgment against Thomas W. Bray and Jesse S. Woods, and that an execution had issued thereon, and remained in the hands of the sheriff, wholly unsatisfied; that David Wilson as administrator of the estate of Samuel J. Hadley, deceased, was indebted to Bray in the sum of $ 100 upon a judgment recovered by the latter against the estate of Hadley. It was averred that Bray had not sufficient other property subject to execution to satisfy plaintiff's judgment, and that he was not entitled, for reasons set forth, to claim any exemption. The prayer was, that both Bray and Wilson might be required to appear and answer concerning the indebtedness, and that Wilson might be ordered to pay the debt due the former in satisfaction of the execution.
A demurrer by Bray for want of sufficient facts was sustained. Wilson answered, admitting the indebtedness as charged. The court overruled a motion to require Bray to answer, and also overruled a motion for an order upon Wilson to pay the money on the execution. Error is claimed upon these several rulings.
There is no averment in the complaint or affidavit, to the effect that the execution debtor unjustly refuses to apply the debt due from Wilson to the satisfaction of the execution.
The proceeding is under sections 816 and 819, R. S. 1881. As against the execution defendant, the omitted averment was essential to the validity of the affidavit. Section 816, R. S. 1881; Dillman v. Dillman, 90 Ind. 585; Earl v. Skiles, 93 Ind. 178, and cases cited.
The complaint in this case is verified, and may, therefore, serve the purpose of an affidavit as well. Where such is the purpose, it must contain all the statutory requisites of a complaint and affidavit. The debtor can not, by this summary method, be required to appear and answer, while the execution remains in the hands of the officer, except by a substantial compliance with section 816. The remedy is an extraordinary one, is based upon a statute, and before the...
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