Secor v. Skiles

• Decision Date: 31 March 1886
• Docket Number: 12,353
• Citation: 5 N.E. 897,106 Ind. 98
• Parties: Secor et al. v. Skiles et al
• Court: Indiana Supreme Court

5 N.E. 897

106 Ind. 98

Secor et al. v. Skiles et al

No. 12,353

Supreme Court of Indiana

March 31, 1886

From the Huntington Circuit Court.

J. C Branyan, J. B. Kenner, M. L. Spencer, J. I. Dille, R. A Kaufman and W. A. Branyan, for appellants.

W. H Trammel and T. L. Lucas, for appellees.

OPINION

Mitchell, J.

This was an attempt by proceedings supplemental to execution to subject certain funds, which were in the hands of the clerk of the circuit court of Huntington county, to the satisfaction of an execution issued on a judgment recovered against Skiles, in favor of Secor, Berdan & Co.

A proceeding in attachment had been commenced against Skiles by the latter, the alleged ground therefor being that Skiles had fraudulently sold his property subject to execution with intent to defraud his creditors. A stock of groceries was seized by the sheriff in pursuance of the command of the writ sued out in the proceedings in attachment. Pending the suit the stock was sold by the sheriff, pursuant to an order of the court.

Something over three thousand dollars was realized on the sale. This amount was paid over to the clerk. The proceedings in attachment were not sustained at the trial. The alleged fraudulent sale was a transfer of the stock by Skiles to Denman. The appellants and other creditors who had filed under the attachment proceeding, recovered personal judgments against Skiles, and upon various judgments and claims in favor of creditors of the latter, all the money in the hands of the clerk, except the sum of about $ 1,200, had been paid out upon orders drawn by Skiles and Denman. They refused to pay the appellants' judgment, amounting to $ 437.84. Execution was issued on this judgment and returned no property found. Thereupon this proceeding was commenced to reach the money remaining in the hands of the clerk.

It was alleged that the money belonged to Skiles, and that he unjustly refused to apply it to the satisfaction of the plaintiffs' judgment. Denman, although nominally a party when this proceeding was commenced, was not summoned and did not appear. He is not named as a party to the amended complaint.

Buchanan, the clerk, who was made a party, answered, admitting that the money was in his custody, and asking the order and judgment of the court for his protection. Skiles answered in denial.

Upon the hearing the court found that Skiles was not the owner of the money in the clerk's...