Over v. Shannon

• Decision Date: 11 October 1883
• Docket Number: 10,509
• Parties: Over et al. v. Shannon et al
• Court: Indiana Supreme Court

91 Ind. 99

Over et al. v. Shannon et al

No. 10,509

Supreme Court of Indiana

October 11, 1883

From the Hamilton Circuit Court.

The judgment is affirmed, at the costs of the appellant.

D Moss, R. R. Stephenson and W. S. Christian, for appellants.

W. Neal and J. F. Neal, for appellees.

OPINION

Bicknell C. C.

This was an action by the appellants against the appellees to recover the possession of a town lot and damages for its unlawful detention.

The defendants answered by a general denial.

Upon a trial by the court, without a jury, there was a finding for the defendants.

The plaintiffs moved for a new trial, alleging that the finding was contrary to the evidence and was not sustained by the evidence.

This motion was overruled; judgment was rendered upon the finding and the plaintiffs appealed, assigning for error the overruling of the motion for a new trial. The plaintiffs showed a prima facie title, under a sheriff's deed to them, as purchasers upon an execution issued on a judgment in their favor against the defendant Smith D. Shannon.

The defendants claimed that the property was exempt from execution and sale under the statutes of 1852 and 1861. 2 R. S. 1876, p. 352.

The objections made by the appellants in their brief, to the sufficiency of the defendants' evidence, are that no real estate was mentioned in the schedule, and that, in the affidavit accompanying the schedule, the defendant Smith D. Shannon swore falsely, as appears by the record. But the bill of exceptions shows that the real estate levied on was mentioned in the schedule; that exemption was claimed before the sale; that the schedule contained first a list of twenty-one items of personal property, and then the following statement: "I claim the remainder of the $ 300 allowed to me by law, in lot number 2, block 3, in John J. Harrison's second addition to Cicero town, Hamilton county, Indiana, and ask that that amount in said lot be set off to me." The description of the real estate in this claim is the same as the description in the complaint of the land sought to be recovered. The claim for exemption nominated George Kreag an appraiser on behalf of the defendant Shannon, and concluded as follows:

"The articles number 1 to 21, inclusive, are those I demand exempt, and I swear that the foregoing inventory contains a full and true account of all my real estate within or without this State, money on hand or on deposit within or without this State, rights, credits and choses in action, and all personal property of any description whatever belonging to me, or had and held by me, or in which I had any interest at the date of issuing said execution, to wit, on the 6th day of July, 1876.

(Signed) S.D. Shannon.

"Sworn to before me this the 6th day of July, 1876.

"W. Maal, Notary Public."

Following this affidavit is a sworn appraisement of the twenty-one items of personal property together, of the value of $ 96.65, as follows:

"We, George Kreag and Jacob Stack, the appraisers selected to appraise the property in the foregoing schedule, have been duly sworn, and, having examined said property, have appraised the several items at the sum set opposite thereto, and we swear that the same is a full fair cash value of the same, to the best of our judgment.

(Signed) "George Kreag, "Jacob Stack.

"Sworn to before me this 6th day of July, 1876.

"Wm. Maal, Notary Public."

The bill of exceptions also shows that Smith D. Shannon was a resident householder of the county. It thus appears that exemption was claimed substantially in accordance with the statutes in force at the time, not only of the...