State ex rel. Holladay v. King

• Decision Date: 29 January 1903
• Citation: 66 N.E. 85,30 Ind.App. 389
• Parties: STATE ex rel. HOLLADAY v. KING, Sheriff, et al.
• Court: Indiana Appellate Court

30 Ind.App. 389

66 N.E. 85

STATE ex rel. HOLLADAY

v.KING, Sheriff, et al.

Appellate Court of Indiana, Division No. 1.

Jan. 29, 1903.

Appeal from superior court, Tippecanoe county; W. De Witt Wallace, Judge.

Proceedings by the state, on the relation of Sarah Holladay, against George B. King, as sheriff of Tippecanoe county, and others. From a judgment for defendants, relatrix appeals. Affirmed.

Chas. M. Bright and Wilson & Quinn, for appellant. Stuart, Hammond & Simms, for appellees.

ROBINSON, J.

Suit against appellee King, as sheriff, and his bondsmen, to recover money alleged to have been received for the use of relatrix. The complaint, filed December 9, 1899, avers that theretofore one Lucas began foreclosure proceedings against relatrix and her husband to collect a debt owing by her husband and foreclose a mortgage on lands owned by her husband, in which mortgage she had joined. William V. Stuart and William F. Bartmers each held a personal judgment against the husband, and were made parties. The only process upon relatrix was the original summons issued at the instance of Lucas. Relatrix did not appear, and was defaulted. The holders of the personal judgments answered, setting out their judgments. The foreclosure decree provided that the surplus, if any, over an amount sufficient to satisfy the mortgage, be applied on the personal judgments of Bartmers and Stuart; that the amount necessary to satisfy the mortgage was $3,368.35; that afterwards Stuart took an assignment of the Lucas judgment, and caused the land to be sold by the sheriff in June, 1899, for $4,600; that King, the sheriff, applied on the Lucas judgment $3,368.35, and of the balance applied $304.41 on the Bartmers judgment and $927.24 on the Stuart judgment; that the amount of the two last-named sums so applied, to wit, $1,231.65, was less than the value of the inchoate interest of appellant in the land as against Bartmers and Stuart. It is also averred that before these sums were so applied, relatrix, as such wife, demanded the same of King, and also filed a complaint in the Tippecanoe superior court asking for the review of the original decree, and asking to restrain the sheriff from so applying such sum, and that summons was issued and served on King prior to the time of such application; that thereafter King took sufficient undertaking from Bartmers and Stuart to protect him, and thereupon paid over the balance to them. Thereafter the Tippecanoe superior court set aside and held for naught that part of the decree requiring the sheriff to apply the balance after paying the Lucas judgment to the payment of the Bartmers and Stuart judgments. The complaint avers a demand before suit, and makes the sheriff's bond an exhibit. A second paragraph of complaint avers substantially, but more fully, the same facts, except it contains no averment that the decree as to the personal judgments was void, and that the sheriff was so notified before the sale. Appellees' answer admits the bringing of the foreclosure suit; sets out in full the decree; alleges that the decree remained in full force until the 25th day of November, 1899, when so much as related to the application of the surplus arising from the sale above the amount necessary to pay the Lucas judgment was set aside; that at the time of rendering the Lucas judgment the court had jurisdiction of the subject-matter of the action, and of all parties thereto, and of all matters therein adjudicated, and that the decree was in all respects legally and duly recovered; that on the 9th day of May, 1899, the clerk of the court issued to the sheriff a certified copy of the decree with an order of sale; that the land was duly advertised for sale, and was sold June 10, 1899, for $4,600; that on the same day the sheriff paid of this sum $3,248.35 to Stuart, the assignee of the Lucas judgment, and, after paying costs, had $1,231.65 in his hands; that on that day the sheriff held executions theretofore duly issued on the Bartmers and Stuart judgments, and applied such surplus in accordance with the decree on these executions, of all of which he made due return; copies of the judgment, decree, and order of sale, and return are made exhibits; that on the same day, and a few hours before the sale on June 10, 1899, relatrix commenced the suit mentioned in the complaint against her husband, Bartmers, Stuart, King, and others, asking, among other relief, that so much of the decree in the Lucas foreclosure as provided for paying the surplus on the Bartmers and Stuart judgments should be set aside, and to restrain King from carrying out the provisions of the decree as to such surplus; that such proceedings were had, and on November 25, 1899, the court modified the former decree by striking therefrom as null and void the following: “The surplus, if any, remaining after the payment of the foregoing judgment, interest, and costs, to be paid by the sheriff first to the satisfaction of the judgment of the defendant William F. Bartmers, next to the judgment of the defendant William V. Stuart, the balance, if any, to be paid to the defendant Eli Holladay: provided, that at the time of such sale the sheriff shall have in his hands execution on said judgments in favor of said Bartmers and said Stuart, but, if such executions are not in the sheriff's hands at that time, he shall pay such surplus into this court”; that no other modification was ever made than that above set out, nor did the court in any other action decree how the surplus should be applied other than the order in the former decree; that from the decree modifying the original decree Bartmers, Stuart, and King appealed to the supreme court (the case afterwards having been transferred to the appellate court), and executed an appeal bond; that in the action commenced June 10, 1899, by the relatrix, she did not verify her complaint or file any affidavit in support of the averments of her complaint, nor did any person do so for her, nor did she file any undertaking for the purpose of procuring any restraining order or injunction, nor did the court or judge issue any injunction or restraining order to enjoin or restrain the sheriff from applying such surplus according to the decree, nor was any injunction or restraining order ever issued; that in making the application of such surplus the sheriff acted strictly in conformity with the judgment and decree which was in force unchanged and unmodified, and so remained until November 25, 1899, and long after such application of such surplus; that at the time relatrix demanded that the sheriff pay such surplus to her she did not have, nor has she ever had, any order or decree requiring such payment to be made to her, nor was there in the Lucas decree that the undivided two-thirds of the real estate should first be offered for sale, nor did relatrix by any pleading or otherwise ask for such order or decree, nor was it determined in that action that the relatrix had any interest in the land; that in applying the surplus to the payment of such judgments the sheriff did so on the demand of Bartmers and Stuart, as well as in conformity with the decree. The second paragraph of reply sets out more in detail the facts averred in the complaint; that the only averment in the Lucas foreclosure complaint as to the Stuart and Bartmers interests was that they were each claiming some interest unknown, but inferior to plaintiff's rights, and were made parties to answer to such interest; sets out copies of the answers of Stuart and Bartmers in that suit, in which it appears they only claimed to have personal judgments against relatrix's husband and John Holladay, which were junior liens to Lucas' mortgage; that they filed no other pleadings; that at the time of the foreclosure decree Eli Holladay was the owner in fee simple of the land, and that relatrix had not conveyed her interest to any one; that on the day of and prior to the sale of the land relatrix notified the sheriff that she was the wife of Eli Holladay, and as against the judgment liens of Bartmers and Stuart she was entitled to the undivided one-third of the land, or of the proceeds thereof; that after the sale, and while the money was still in his hands, she demanded all the money above the amount necessary to pay the Lucas judgment, which demand he refused; that in the suit...