Russell v. Cleary

• Court: Indiana Supreme Court
• Writing for the Court: Howk, J.
• Citation: Russell v. Cleary, 105 Ind. 502, 5 N. E. 414 (Ind. 1886)
• Decision Date: 04 March 1886
• Docket Number: 12,403
• Parties: Russell v. Cleary et al

5 N.E. 414

105 Ind. 502

Russell v. Cleary et al

No. 12,403

Supreme Court of Indiana

March 4, 1886

From the Vigo Superior Court.

The judgment is affirmed, with costs.

S. C Stimson and R. B. Stimson, for appellant.

B. E Rhoads and E. F. Williams, for appellees.

OPINION

Howk, J.

Errors are assigned here by appellant Russell, the plaintiff below upon the decisions of the superior court, (1) in sustaining the separate demurrers of appellee Stephen Hedges to each of the first and second paragraphs of complaint, and (2) in overruling his motion for a new trial.

In the first paragraph of his complaint, appellant alleged that, on the 19th day of May, 1882, he was plaintiff in an action then pending in the superior court of Vigo county, against appellee Hedges, for malicious prosecution; and that, on the day last named, appellant dismissed his aforesaid action for malicious prosecution, and the costs therein were taxed against him in the sum of $ 56.90; that afterwards, on November 24th, 1883, appellee Hedges caused an execution to be issued against appellant for the collection of such costs and placed such execution in the hands of appellee Cleary, sheriff of Vigo county, who proceeded to levy the same upon appellant's property; that appellant was then and since a householder of the State of Indiana, and, as such, demanded the benefit of exemption from execution, and delivered to such sheriff, at the time of making such demand, a full, true and complete schedule and inventory of all his property of every name and description, in due form of law, and verified by appellant's affidavit; that appellee Cleary, by Hedges' direction, in disregard of such demand and schedule, levied upon and was proceeding to sell appellant's property, and refused to set off to appellant any property as exempt from execution, to his irreparable injury; that all of appellant's property was worth less than $ 600, and should all be set off to him as free from execution; that the appellees, after appellant had demanded exemption of his property at the hands of sheriff Cleary, and had delivered to him such schedule and inventory, unlawfully entered appellant's house and levied upon and seized his household goods, and his wife being then and there sick was so disturbed, excited and frightened by such unlawful doings of appellees, that her malady was greatly aggravated; and appellant averred that he had been damaged, by such unlawful doings of appellees in the sum of $ 600. Wherefore appellant prayed that appellees be restrained from selling such property, and that the execution of such judgment be enjoined, and for $ 500 damages, etc.

In section 703, R. S. 1881, in force since May 31st, 1879, which section, except as to the amount of the exemption, is substantially a re-enactment of section 1 of "An act to exempt property from sale in certain cases," approved February 17th, 1852, it is provided as follows:

"An amount of property not exceeding in value six hundred dollars, owned by any resident householder, shall not be liable to sale on execution or any other final process from a court, for any debt growing out of or founded upon a contract, express or implied, after the taking effect of this act."

In construing the provisions of this section of the statute, it has been uniformly held by this court, that, under such provisions, property can only be claimed by a resident householder, as exempt from sale on execution, where the judgment has been rendered in an action upon a cause of action growing out of or founded upon a contract express or implied. State, ex rel., v. Melogue, 9 Ind. 196; Thompson v. Ross, 87 Ind. 156; State, ex rel., v. McIntosh, 100 Ind. 439.

In the case in hand, it will be seen from the summary of the first paragraph of complaint heretofore given, that the judgment for costs against the appellant, and as to which he claimed an exemption of his property from sale on an execution issued thereon, was rendered in an action, not upon contract express or implied, but to recover damages for a malicious prosecution, and sounding in tort. In Nowling v. McIntosh, 89 Ind. 593, in speaking of a complaint similar, in some respects, to the complaint now under consideration, the court said "There was no error in sustaining the demurrer to the complaint in this suit. It was insufficient because exemption exists only in actions upon contract, and because it claimed exemption on a judgment obtained in an action sounding in...