Snyder v. Thieme & Wagner Brewing Co.

• Citation: 87 N.E. 155
• Decision Date: 16 February 1909
• Docket Number: No. 6,268.,6,268.
• Court: Court of Appeals of Indiana
• Parties: SNYDER et al. v. THIEME & WAGNER BREWING CO. et al.

87 N.E. 155

SNYDER et al.

v.THIEME & WAGNER BREWING CO. et al.

No. 6,268.¹

Appellate Court of Indiana, Division No. 1.

Feb. 16, 1909.

Appeal from Circuit Court, Tippecanoe County; R. P. De Hart, Judge.

In the matter of the final settlement by Frank M. Snyder, administrator of the estate of Peter J. Hengen. Judgment confirming a master commissioner's report, declaring that judgments held by the Thieme & Wagner Brewing Company and others were entitled to priority of payment from funds of the estate, and the administrator and others appeal. Affirmed.

Stuart, Hammond & Simms and Charles E. Thompson, for appellants. Wilson & Quinn, for appellees.

MYERS, J.

It appears from the transcript before us that the appellant Frank M. Snyder, administrator of the estate of Peter J. Hengen, filed his report in final settlement of said estate, showing that upon his petition to the court he had been ordered to settle said estate as an insolvent estate; that of the proceeds arising from the sale of real estate to pay debts, after the payment of the specific liens on said real estate and $300 to the widow, balance of her $500 statutory allowance, there remained in his hands of such proceeds, including the widow's interest, $2,525.15, which sum he paid into court for the reason that certain judgment creditors, appellees, were claiming priority in the payment of their said judgments over the payment of the expenses of administration, funeral expenses, and expenses of last sickness. The order of payment as fixed in said report was the reverse of that claimed by said creditors. Appellees separately filed in the court below exceptions to the administrator's report, whereupon the court referred the same, and the exceptions thereto to a master commissioner for examination, and for a report of the facts, with his conclusions of law thereon. The master commissioner, after hearing the evidence relative to the matters involved in said report, recommended to the court that the report of the administrator be not approved; that the judgments held by appellees and rendered by the superior court of Tippecanoe county during the lifetime of the decedent were entitled to payment out of the money in the hands of the clerk prior to the payment of any cost or expenses of administration, funeral expenses, or expenses of last sickness, and that said administrator should be required to restate his account in accordance with said findings and conclusions. The appellants separately filed in the court below exceptions to the master's report, which exceptions were each overruled, and judgment rendered in accordance with said findings and conclusions of the master.

In this court appellants separately assign error of the trial court in overruling each exception separately and severally to the report of the master. Without setting out these various exceptions, the controlling question for our consideration is whether the judgments rendered by the superior court of Tippecanoe county against the decedent in his lifetime have preference in payment over the expenses of administration, funeral expenses, and expenses of last sickness, where the fund from which payment is to be made arose from the sale of such decedent's real estate by the administrator to pay debts; the fund being insufficient to pay said judgments and such expenses. It has been suggested, also, that the cash payment to the widow is subject to the payment of the expenses of administration, funeral, and last sickness of the deceased. The Legislature in establishing the “superior court of Tippecanoe county” provided that it “shall be a court of record, and of general jurisdiction, and its judgments, decrees, orders, and proceedings shall have the same force and effect as those of the circuit court and shall be enforced in the same manner.” Acts 1875, p. 56, c. 39, § 12. It appears from the transcript before us that the decedent left surviving him a widow and children; that the total value of all his property was less than $5,000, and aside from his personal property, of the value of $200, it was all in real estate in Tippecanoe county, and covered by certain specific liens. The personalty was all taken by the widow as a part of her statutory allowance. The balance, or $300, was paid to her out of the proceeds produced from the sale of the real estate for the payment of debts. Appellees' judgments were founded upon contracts. No execution or other writ was ever issued on account of these judgments. It may be conceded that a judgment lien is general, and is given by statute only (Taylor v. McGrew, 29 Ind. App. 324, 64 N. E. 651); that it is a mere remedy given to the judgment creditor, and may be withheld or divested by the general assembly at any time before rights have become thereby vested (Gimbel v. Stolte, 59 Ind. 446;Houston v. Houston, 67 Ind. 276;Shirk v. Thomas, 121 Ind. 447, 22 N. E. 976, 16 Am. St. Rep. 381;State v. Helms, 136 Ind. 122, 35 N. E. 893), “and there can be no vested right in a remedy.” Gimbel v. Stolte, supra.

At the time of the death of Hengen appellees' judgments were liens upon his real estate, and such real estate was subject to sale on execution for the purpose of satisfying such judgments. Sections 635, 795, Burns' Ann. St. 1908; Moss v. Jenkins, 146 Ind. 589, 45 N. E. 789. It therefore becomes important to determine what effect the death of the judgment debtor had upon the remedy theretofore enjoyed by the judgment creditors; for, as it will be seen, other statutory provisions became operative and clearly settle the rights of the parties to this appeal. Section 2847, Burns' Ann. St. 1908, suspended the right of appellees to have execution for a period of one year from the time of the death of the decedent. In the meantime the real estate was sold by the administrator, discharged of all liens, for the payment of debts, as provided by section 2852 et seq., Burns' Ann. St. 1908, and by virtue of section 2867, Burns' Ann. St. 1908, the liens attached to the fund...