Mitchell v. Godsey

• Decision Date: 29 February 1944
• Docket Number: 27907.
• Citation: 53 N.E.2d 150,222 Ind. 527
• Parties: MITCHELL v. GODSEY.
• Court: Indiana Supreme Court

53 N.E.2d 150

222 Ind. 527

MITCHELL v. GODSEY.

No. 27907.

Supreme Court of Indiana

February 29, 1944

Appeal from Morgan Circuit Court; Omar O'Harrow Judge.

Owen S. Boling, of Indianapolis, for appellant.

Joseph M. Howard, Wesley T. Wilson, and Oliver P. Kensinger, all of Indianapolis, for appellee.

SWAIM Judge.

This is an appeal from a judgment rendered against the appellant in a proceeding supplementary to execution. The judgment, on which the proceeding supplementary to execution was based, was rendered in the Marion Superior Court in an action for damages for assault and battery. An execution was issued on said judgment and was returned unsatisfied.

The plaintiff thereupon filed in the same court, under the same title and cause number, an unverified motion for the defendant to appear and answer concerning his property and income. This motion, filed April 22, 1941 alleged that it appeared from the record in said cause that on March 19, 1940, an execution was issued on the judgment and, on September 17, 1940, it was returned by the sheriff of Marion County unsatisfied; and that the action was for damages for assault and battery. The order for the defendant to appear and answer recited that 'the Court having examined said motion and the record of this case and being fully advised, finds that on March 19, 1940, an execution was issued on plaintiff's judgment herein and thereafter, on September 17, 1940, said execution was returned by the sheriff of Marion County unsatisfied; that the action is for damages for assault and battery; that plaintiff's said motion should be in all things sustained' and ordered the defendant to appear before said court, on April 26, 1941 then and there to answer concerning his property and income subject to execution on plaintiff's judgment, and ordered the sheriff of Marion County to make due service and return of said judgment. Before said hearing was held the cause, on the defendant's motion, was taken on a change of venue to the Morgan Circuit Court, where on January 22, 1942, a hearing was held and the defendant was examined.

In said hearing the defendant testified that he resided at 5703 East Washington Street, in Indianapolish, Indiana; that he owned no real estate or personal property of any kind; that he had sold and conveyed his interest in certain real estate to his wife early in June, 1939, and in April of the same year had sold and transferred to her all of his title and interest in the furniture in their home.

He further testified that for nineteen years he had been employed as a salesman for the American Optical Company of Southbridge, Massachusetts, and for his work he received a salary of $2,860 per year which was paid to him in monthly installments; that in addition to said salary he sometimes received a bonus from said company; that his territory covered part of Indiana and part of Illinois; that he worked directly out of the home office of the company, was paid by check each month and received the check at any point he might direct; and that he made federal income and gross income tax returns on the basis of said salary.

At the conclusion of said hearing the court ordered that the defendant pay to the sheriff of Marion County, on the 5th day of each month, beginning with February 5, 1942, ten per cent of so much of said salary as shall have been received since the 5th day of the preceding month, 'to be applied toward the satisfaction of plaintiff's judgment herein; that said judgment shall be a continuing lien upon ten per centum of said salary; and that said defendant be and he is hereby enjoined and prohibited from assigning said ten per centum of said salary, removing the same from the the State of Indiana, or causing the same to be delivered to him or any other person outside the State of Indiana, in evasion of this order.' The defendant's motion for a new trial alleged, among other grounds therefor, that the decision of the court was not sustained by sufficient evidence and was contrary to law. The defendant also filed his motion to modify said order and judgment by striking out certain parts thereof.

On this appeal the appellant has assigned as error the action of the trial court in overruling both of these motions and also that the trial court did not have jurisdiction of the subject matter.

The appellant contends that the trial court did not have jurisdiction of the subject matter because Ch. 84, Acts of 1937, p. 440, on which the proceeding was based, is unconstitutional. This contention is predicated on two grounds: (1), that since § 5 of said act was held unconstitutional in Draper v. Zebec, 1941, 219 Ind. 362, 37 N.E.2d 952, 959, 38 N.E.2d 995, and as the remaining sections of said act are inseparable from the unconstitutional section, they must likewise fail; and (2), that sections 1, 2 and 3 of said act are unconstitutional because each of said sections provides for the compulsory examination of the judgment debtor without providing immunity from criminal prosecution on the matters disclosed in such examination.

Said Act was entitled 'An Act to amend sections 592, 593, 596, and 598 of an act entitled 'An act concerning proceedings in civil cases,' approved April 7, 1881.' The named sections of said 1881 Act had to do with proceedings supplemental to execution. The first three of said sections provided for the examination of the judgment debtor after the issuance of an execution. The issuance of an execution was made a condition precedent to the order for the judgment debtor to appear and answer. Sec. 5 of the 1937 Act provided that 'Except in such cases where the denial of this remedy would be in violation of the Constitution of the State of Indiana or the United States of America, no execution shall issue under this act upon any judgment upon a debt secured by mortgage upon real property, nor upon any judgment upon any contract of the sale of personal property unless the title of the said property passes at the time of said sale.' In Draper v. Zebec, supra, this court held that said section 5 was invalid on the ground that it did 'not deal with proceedings supplemental to execution, (the subject of the four sections named in the title) but seeks to expressly change the law providing for the issue of execution, and to curtail and limit the cases in which executions shall issue. It, in effect, exempts all property from execution upon money judgments upon debts secured by mortgage or contract of sale of personal property except the property mortgaged or sold.' In that case we also said 'The subject matter of section 5 is so incongruous with, and so slightly related to, the subject matter of section 598 as originally enacted, or as amended, that we are forced to the conclusion * * * that section 5 was intended not as an amendment to the procedure in proceedings supplemental to execution, but as an independent provision preventing execution from issuing in any case upon judgments upon a debt secured by mortgage or upon a contract for the sale of personal property.' It follows, of course, that holding invalid such an independent and unrelated provision of a statute could not be held to invalidate the other provisions of the statute on the theory that the invalid section and the other sections were inseparable.

As authority for his second proposition as to the invalidity of said act the appellant cites 33 C.J.S., Executions, § 346, p. 650, which states that 'an act which makes no provision that no answer which the debtor may be required to make shall be used against him in any criminal prosecution is in violation of a constitutional provision that no person shall be compelled to give testimony which may incriminate him.' The only case cited by C.J.S. as an authority for this statement is Horstman v. Kaufman, 1881, 97 Pa. 147, 39 Am.Rep. 802. The Pennsylvania act, there being considered, provided for the examination of a judgment debtor by the judgment creditor and a commissioner and the opinion states that the plaintiff 'in the execution is clothed with the sole, unrestrained, and unlimited power to call before himself and his commissioner the defendant with his books and papers, and then and there at his own good pleasure, examine him and them without rule, restraint or supervision and without limitation as to time or manner.' The opinion further points out that 'the initial proposition is to compel the debtor to reveal that which is made a misdemeanor by the Crimes Act of 1860. This cannot be done.'

The appellant also cites upon this proposition Overman v. State, 1924, 194 Ind. 483, 143 N.E. 604. In that case this court pointed out that the privilege of a witness against incriminating himself being granted by the Constitution cannot be abridged by any act of the Legislature but the decision in that case pointed out that a witness is not required to give testimony which tends to incriminate him even though a statute purports to require the giving of such testimony; that a witness either in a civil or in a criminal case may, with impunity, refuse to give testimony which would incriminate him.

In State v. Comer, 1902, 157 Ind. 611, 62 N.E. 452, 453, it was said 'being subpoenaed, and appearing before the grand jury, and being sworn, was not a violation of appellee's constitutional rights; and while before the grand jury he would be compelled to testify to any matter which did not criminate him. Under the provision of the Constitution of this State above quoted, he could not, however, be compelled to testify before the grand jury to any matter that would criminate him.'

Since a judgment defendant, in a hearing on a proceeding supplementary to execution, can not be compelled to answer any question which would tend to criminate him we can see...