Smith v. Tate
| Decision Date | 27 January 1903 |
| Parties | SMITH et al. v. TATE et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Greene county; A. B. Harris, Judge.
Action by Joseph G. Smith and others against Lewis C. Tate and others. From a judgment in favor of defendants Clara A. Tate and Simon Lehman, plaintiffs appeal. Affirmed.W. F. Gallemore, for appellants. Cyrus E. Davis, Wm. L. Cavins, and Chas. E. Henderson, for appellees.
Appellants were plaintiffs below. The amended complaint is in three paragraphs. The first paragraph substantially alleges that they, as assignees of Marrion E. Tolen, obtained judgment against appellee Lewis C. Tate before a justice of the peace for $54.98, for wages due from Tate to Tolen as a laborer and mechanic, which judgment is owned by appellants, and is in full force and unpaid; that appellees Clara A. Tate and Simon Lehman claimed at the date the judgment was rendered, and ever since, and now claim, to own all of Lewis C. Tate's property subject to execution, which claim is without right, and they are made parties to answer as to their interests, a bill of particulars of which property is filed therewith as Exhibit A. Appellants demand judgment for $100 against Lewis C. Tate, and ask that it be declared a first lien on all said property as against all the appellees, and that it be ordered sold to pay said debt. The second paragraph substantially alleged: That in May, 1899, appellants recovered before a justice of the peace a judgment against Lewis C. Tate for $54.98 on a note executed by Murphy and Lehman May 11, 1895, due one year from date, payable to Lewis C. Tate, and indorsed by him in June, 1895, to Marrion Tolen and appellant Gallemore, to pay wages due Tolen, and attorney's fees due Gallemore (Tolen's interest therein being assigned to appellants Joseph G. Smith and Oscar Smith September 28, 1895), which judgment the appellants are the owners of, and which remains in full force and effect. That an execution was issued on said judgment, and delivered to a constable, May 29, 1899. That at the time the wages were due, the note indorsed by Lewis C. Tate, the judgment rendered, and the execution issued, Lewis C. Tate was, ever since has been, and is now, the rightful owner of the personal property set out in the bill of particulars filed herewith, marked “Exhibit A.” That at all times mentioned in the complaint, Lewis C. Tate was and is the rightful and equitable owner in fee of a certain lot (describing it). That all said personal and real estate is held in the name of Clara A. Tate and Simon Lehman, in trust for the benefit of Lewis C. Tate, and was at the issuing of said execution, ever since, and at this time, claimed by Clara A. Tate and Simon Lehman. They are made defendants to answer to their interests. That after said judgment was rendered, Lewis C. Tate, for the purpose of hindering and defrauding his creditors in the collection of said debt and judgment, transferred and pledged all his personal property to Clara A. Tate and Simon Lehman, without any consideration therefor. In the year 1899 said Lewis caused said real estate to be conveyed to his wife, Clara A. Tate, without any consideration. That at the time of the transfer of said personal property and the conveyance of said real estate, said Clara A. Tate and Simon Lehman had full knowledge of the fraudulent intent and insolvency of Lewis C. Tate. That Lewis C. Tate ever since had, and now has, full control, use, and possession of all said personal property and real estate. That at the dates of the transfer of said personal property and the conveyance of said real estate he was, and has ever since remained, wholly insolvent, with no other property subject to execution. That there is due on said judgment $75, and $75 as attorney's fees for collecting, etc. The third paragraph is substantially the same as the second, relating to the judgment before the justice of the peace. It is further averred that at the date the work was done and the note indorsed, and ever since said dates, and at this time, Lewis C. Tate was in failing circumstances, and with no property subject to execution; that at said dates he was and is the owner of machinery, tools, materials, finished and unfinished work, in and about his shop, the Bloomfield Marble Works, and of notes, contracts, claims, and property received as an income therefrom, a list of which is filed as Exhibit B, and made a part of the said paragraph; that appellants are the owners of said judgment,which was taken for wages due for a labor debt, as aforesaid; and that it is due. The appellants ask to be subrogated to all the rights of Marrion Tolen as assignee of said labor debt. Upon the trial of the cause by the court, judgment was rendered in favor of appellants against Lewis C. Tate for $69.50, and in favor of appellees Clara A. Tate and Simon Lehman for costs against the appellants.
It is claimed that the court erred in striking out interrogatories 1 to 26 addressed by appellants to appellee Lewis C. Tate, to be answered on oath. It is also insisted that the court erred in sustaining the motion of appellee Lewis C. Tate to strike out certain parts of the amended complaint. Exceptions were taken to these rulings, and bill of exceptions filed, but the interrogatories and parts of the complaint said to have been stricken out are not set forth in any bill of exceptions. It must therefore be held, as contended by appellee, that the questions attempted to be raised on these rulings are not presented by the record.
Appellants propounded to William F. Gallemore, a witness called in their behalf, seven interrogatories, to each of which the court sustained an objection. It is claimed that this was error. Appellants excepted to the ruling, but did not at any time state to the court the facts they expected to elicit in answer to said questions. Therefore no question is presented upon this ruling. Lauter v. Duckworth, 19 Ind. App. 543, 48 N. E. 864, and cases cited.
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