State ex rel. Haven v. Melogue

• Court: Indiana Supreme Court
• Writing for the Court: Gookins, J.
• Citation: State ex rel. Haven v. Melogue, 9 Ind. 187 (Ind. 1857)
• Decision Date: 02 June 1857
• Parties: The State on the relation of Haven and Wife v. Melogue and Others

9 Ind. 187

The State on the relation of Haven and Wife v. Melogue and Others

Supreme Court of Indiana

June 2, 1857

From the Hendricks Circuit Court.

The judgment is reversed with costs. Cause remanded for a new trial.

Christian C. Nave, for state.

James M. Gregg, for appellees.

OPINION

Gookins J.

At the April term, 1854, of the Putnam Circuit Court, Haven and wife recovered a judgment against Smith and wife, in slander, for 100 dollars damages, and 50 dollars and 27 cents costs; and on the 20th day of April, 1854, sued out a fi. fa. thereon, which was delivered to the defendant Melogue, who was sheriff of Hendricks county, for execution, and which, on the 20th of October following, he returned nulla bona. This action is brought on the official bond of Melogue as sheriff, against him and his sureties, assigning for breaches that the above return was false, and that it was not made within the time required by law. The issue joined upon the pleadings was submitted to the Court for trial. Finding for the plaintiff, five cents damages. Motion for a new trial refused, and judgment rendered for the plaintiff for the damages assessed, and in favor of the defendant for costs.

The judgment, execution, and return were given in evidence, and it was proved that the defendant in execution had a considerable amount of personal property, encumbered somewhat, but not to its full value. The Circuit Court held that it was not worth 300 dollars, exclusive of incumbrances.

The appellant admits that had the execution been issued upon a judgment for the recovery of a debt contracted after the 4th day of July, 1852, property to the amount of 300 dollars in value would have been exempt; but insists that as it was for the recovery of a judgment in an action of tort, unconnected with contract, there is no exemption.

Art. 1 sec. 22, of the constitution, is as follows: "The privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale for the payment of any debt or liability hereafter contracted: and there shall be no imprisonment for debt, except in cases of fraud."

An act was approved February 17, 1852, the preamble of which recites the above constitutional provision; and the first section of the act provides that an amount of property not exceeding 300 dollars in value, owned by any resident householder,...