Sannes v. Ross

• Decision Date: 11 March 1886
• Citation: 5 N.E. 699,105 Ind. 558
• Parties: Sannes v. Ross and others.
• Court: Indiana Supreme Court

105 Ind. 558

5 N.E. 699

Sannes

v.Ross and others.

Supreme Court of Indiana.

Filed March 11, 1886.

Appeal from Benton circuit court.

Straight, Wiley & Carter, for appellant.

Walker & Phares, for appellee.

Mitchell, J.

Joseph Ross commenced suit against John O. Sannes on the twenty-fifth day of July, 1883, in the Benton circuit court, to recover the amount of certain promissory notes, and for goods sold and delivered. Upon an affidavit and undertaking, duly filed by Ross, a writ of attachment was sued out. The case exhibited in this record is an action by Sannes against Ross and Phares on the undertaking in attachment in the case above mentioned. The complaint recites the commencement of an action by the appellee against the appellant, the filing of the undertaking in attachment, setting out a copy, the issuing of a writ of attachment, and the seizure by the sheriff, in pursuance of the command of the writ, of certain described personal property alleged to belong to the plaintiff. It is alleged that the attachment proceeding was disposed of at the September term, 1883, of the Benton circuit court, against the defendant. The breaches assigned are that Ross did not duly prosecute his proceedings in attachment, and that they were wrongful and oppressive, by reason of which damages had accrued to the plaintiff which remained unpaid. Upon issues made upon this complaint a trial was had. The jury, under an instruction from the court, returned a verdict for the defendant.

The only error presented is the overruling of the appellant's motion for a new trial. A bill of exceptions discloses that the plaintiff put in evidence the pleadings, affidavit, and undertaking in attachment, the writ, and the sheriff's return thereon, the order-book entries, and judgment in the suit and attachment proceedings of Joseph Ross against John O. Sannes in the Benton circuit court. It appeared from these that, upon the writ of attachment sued out, certain personal property belonging to Sannes had been seized by the sheriff, and that a personal judgment had been rendered in favor of Ross for $372.62. The record is silent as to the disposition made of the proceedings in attachment. Except as it may be inferred from the rendition of a final judgment in personam, in the case pending, the record does not disclose the result of the issue made in the affidavit in attachment. The bill of exceptions recites that the appellant offered oral evidence to prove that the attachment proceeding had been dismissed by the plaintiff before the rendition of final judgment. This testimony was rejected. It also discloses that a motion was made in open court, during the trial, to correct the record in the attachment suit by a nunc pro tunc entry on the order-book, so as to show the dismissal of the proceedings in attachment, in correspondence with an entry to that effect on the court docket. This was denied. The appellant offered testimony tending to prove the amount of damages sustained by the seizure of his personal property. This proof was also rejected. The court thereupon instructed the jury as follows: “The court instructs you that, there being no evidence in this case tending to sustain any issue in behalf of the plaintiff, your verdict must be for the defendant.”

The court proceeded upon the assumption that, in order to maintain the action, it was essential that the record in the case in which the attachment was sued out, should show affirmatively and in terms that there had been a final disposition of the proceedings in attachment. Upon that assumption, and because the record failed to show a judgment in respect of the attachment proceeding, proof of the amount of damages sustained was rejected, and the jury was peremptorily instructed to return a verdict for the defendant. This was error. In the case of Smith v. Scott, 86 Ind. 346, it was directly ruled that “the rendering of a personal judgment alone was equivalent to a dismissal or discharge of the proceedings...