State ex rel. Talbott v. Emmons

• Decision Date: 06 January 1885
• Docket Number: 11,394
• Citation: State ex rel. Talbott v. Emmons, 99 Ind. 452 (Ind. 1885)
• Parties: The State, ex rel. Talbott et al., v. Emmons et al
• Court: Indiana Supreme Court

99 Ind. 452

The State, ex rel. Talbott et al., v. Emmons et al

No. 11,394

Supreme Court of Indiana

January 6, 1885

From the Putnam Circuit Court.

The judgment is affirmed, with costs.

C. C Nave, for appellants.

L. M Campbell, for appellees.

OPINION

Howk J.

This suit was commenced by the appellant's relators against the appellees in the Hendricks Circuit Court. The relators' complaint counted upon the official bond of the appellee James M. Emmons, as sheriff of Hendricks county, and sought to recover damages for an alleged breach of his official duty, as such sheriff, in this: That he had failed and neglected to levy and collect a certain execution in his hands as such sheriff, in favor of the relators and against one Samuel H. Moore, etc. On the relators' application the venue of the cause was changed to the court below. There the cause was put at issue and tried by the court, and, at the appellees' request, the court made a special finding of the facts, and stated its conclusions of law thereon in favor of the relators, assessing their damages in the sum of one cent. Over the relators' exceptions to the conclusions of law, the court rendered judgment that they recover one cent damages, and that the appellees recover their costs.

The first error complained of in argument by the relators' counsel is the alleged error of the court in its conclusions of law upon the facts specially found. The court found specially that, prior to December 1st, 1880, the appellee Emmons had been elected sheriff of Hendricks county, for the term of two years, from November 7th, 1880, and had executed and delivered his official bond in the penal sum of $ 5,000, with his co-appellees as his sureties therein, and had taken the oath of office, and, on December 1st, 1880, had entered upon the discharge of his official duties; that, on June 8th, 1880, the relators recovered a judgment in the Hendricks Circuit Court against Samuel H. Moore for $ 475, upon an express contract, without relief from valuation laws; that, on January 19th, 1881, the relators sued out an execution on such judgment, and, on January 21st, 1881, placed the same in the hands of appellee Emmons, as such sheriff, which execution was returned on the 22d day of April, 1881; that the execution defendant had claimed the benefit of the exemption law, and that all his property had been set off to him thereunder; that, on August 27th, 1881, the relators caused an alias execution to issue upon their judgment, which writ came to the hands of appellee Emmons, as such sheriff, on the same day; that, on October 20th, 1881, the execution defendant filed his schedule with appellee Emmons, as such sheriff, claiming the benefit of the exemption law of this State, and his property was duly appraised, and, being of less value than $ 300, was again set off to him, and the execution was returned unsatisfied; that during all such time, from January 19th, 1881, to October 20th, 1881, the execution defendant, Samuel H. Moore, was in copartnership with his son in the town of Danville, in Hendricks county, in a confectionery and restaurant, under the firm name of Samuel H. Moore & Son, they being equal partners, in which they had during all such time a stock of goods of the value of $ 550, which was partnership property belonging to such firm; and that, during all such time, the firm owed and was indebted in the sum of $ 550; that one-half of the value of the stock of goods was $ 275, and that the interest of Samuel H. Moore therein subject to the payment of partnership debts was of no value; that the execution defendant claimed his interest in the firm property, which was appraised at $ 100, as exempt from execution, and such interest was set off and exempted to him, under his claim of $ 300, as exempt from execution, which was done over the protest and against the directions of the relators' attorneys; that such judgment still remained wholly unsatisfied; that the execution defendant, Samuel H. Moore, during all such time, from January 19th to October 20th, 1881, was a resident householder of Hendricks county, and the head of a family.

Upon the foregoing facts the court stated its conclusions of law as follows:

1. That the execution defendant, Samuel H. Moore, was not entitled to claim his interest in the firm property as exempt from execution under the exemption laws of Indiana; and,

2. That the relators were entitled to recover of the appellees the value of the interest of Samuel H. Moore in the partnership property, subject to the payment of the debts of such partnership, and no more.

There was no motion below by the appellant's relators either for a new trial or for a venire de novo, and the evidence is not in the record. By their exceptions to the conclusions of law, the relators admitted that the facts were fully and correctly found, but they said that the court had erred in applying the law to the facts so found in its conclusions of law. Cruzan v. Smith, 41 Ind. 288. Of course, the relators might have called in question the correctness of the facts specially found, or the failure of the court to find facts which were proved, by motions either for a new trial or for a venire de novo, but, as we have said, no...