State ex rel. Wheatley v. Beck

• Decision Date: 25 January 1911
• Docket Number: No. 21,640.,21,640.
• Citation: 175 Ind. 312,93 N.E. 664
• Parties: STATE ex rel. WHEATLEY v. BECK et al.
• Court: Indiana Supreme Court

175 Ind. 312

93 N.E. 664

STATE ex rel. WHEATLEY

v.BECK et al.

No. 21,640.¹

Supreme Court of Indiana.

Jan. 25, 1911.

Appeal from Circuit Court, Tipton County; Leroy B. Nash, Judge.

Mandamus by the State on the relation of Dora Wheatley against Frederick W. Beck and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Oglebay & Oglebay, for appellant. Gifford & Gifford, for appellees.

COX, J.

The appellant (relatrix) filed her petition in the Tipton circuit court on the 3d day of May, 1909, for an alternative writ of mandate directing and ordering the appellee Beck as sheriff of that county to levy an execution then in his hands on personal property and on certain lands of appellee Johnson, to sell the same and apply the proceeds to the payment and satisfaction of an unpaid judgment held by relatrix against Johnson, upon which judgment the execution had been duly issued. The alternative writ was issued. Upon his own application Johnson was admitted as a party defendant, and answered. The appellee Beck, as sheriff, filed an answer and return to the complaint. Appellant's (relatrix's) demurrers, for want of facts addressed to these answers, were overruled, and, relatrix refusing to plead further, judgment was rendered for appellees and against relatrix for costs. The overruling of these demurrers is the basis of appellant's assignment of error in this court.

The answers of appellees which appellant in this appeal is contending should have been held insufficient by the trial court are substantially alike. It will serve no good purpose to set them out in full in this opinion. They admit the execution in the hands of the sheriff, Beck, and the existence of the judgment in question; that the judgment was rendered against Johnson in the Tipton circuit court in the year 1900, at the suit of one Frank J. Wheatley; that it was for the sum of $313.50, damages and costs, and “without relief from valuation laws, and without benefit of exemption laws,” and that on the 23d of March, 1909, it was duly assigned of record to the relatrix; they show by proper averments that the judgment was duly rendered after the trial of an issue formed by general denial of a complaint alleging “that on the 15th day of August, 1899, the plaintiff executed to the defendant his promissory note, calling for $200, payable at the State Bank of Sheridan, Ind., 120 days after date, with interest and attorney's fees; that before the maturity thereof, defendant sold and transferred said note to Robert Picken et al. That in the month of October, 1899, the plaintiff was the owner of 22 head of calves, which said calves the plaintiff placed in the hands of the defendant, as his agent, to sell and apply the proceeds to payment of the note hereinbefore described, and the remainder to be paid to plaintiff, or as he may direct; that the defendant sold the calves to one Lem Scott and for the price of $420, and received from Scott the payment therefor; that defendant refused to pay said note, or any part thereof, and has and still has and retains the $420 of plaintiff's money and has converted the same to his own use, to his damage in the sum of $1,000; wherefore, he demands judgment for $1,000 damages and for all other and proper relief;” that thereafter on March 27, 1901, Johnson filed his petition in bankruptcy in the District Court of the United States for the district of Indiana, and was duly adjudged a bankrupt; and, after averring facts showing that all the necessary intervening steps were taken, they show Johnson's discharge as such bankrupt “from all his personal obligations and liabilities.” They show, further, that the land sought to be levied on and sold was acquired by Johnson after his discharge in bankruptcy. The one question seriously presented for determination in this appeal is whether the discharge in bankruptcy of appellee Johnson released him from the payment of the judgment set out in the foregoing answers under clause 2 of section 17 of the federal bankrupt act of July 1, 1898, c. 541, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3428), which reads as follows: “A discharge in bankruptcy shall release a bankrupt from all provable debts except *** (2) judgments in action for fraud.”

Preliminary to the discussion of this question, however, appellant's counsel earnestly and ably insist that these answers are bad, because neither of them contains the direct allegation that the judgment therein set forth, and upon which the execution involved in this case was issued, “was not rendered in an action for fraud,” and at the same time urge that setting out at length in these answers the complaint on which the judgment was rendered made the answers objectionable. Neither of these contentions can be approved. The very life of the answers depended on the character of the judgment, and that is to be ascertained from the pleadings in the action in which it was rendered. Where the pleadings are not ambiguous, or equivocal as to the character of the action, they are the only means of determining the nature of the action and the character of the judgment. Furry v. O'Connor (1891) 1 Ind. App. 573-580, 28 N. E. 103;Smith v. Wood (1882) 83 Ind. 522-524;Gentry v. Purcell (1882) 84 Ind. 83, 84. The direct allegation that the judgment “was not rendered in an action for fraud” would, to say the least, not add anything to the strength of the answers. The existence of fraud or the absence of it as being the foundation of the action on which the judgment was based must appear from the complaint and the issue joined upon it, and that could properly be shown by setting the complaint out in the answers, as was done.

The appellant can fare no better in the determination of the main question stated above. Counsel for appellant say in their brief that their action is predicated upon subdivision 2, section 17, of said act, which reads: “That judgments rendered in actions for fraud are not released by the discharge of the defendant in bankruptcy,” and that “Johnson converted the money of Wheatley to his own use, and the judgment was rendered in an action against him for his fraud.” It is obvious that the cause of action on which the judgment was rendered primarily grew out of contractual relations, and that whatever fraud attached itself to it was involved in the wrongful application or conversion of the proceeds of the sale. Wheatley had his election of remedies and could have sued on contract or for the tort. Terrell v. Butterfield (1883) 92 Ind. 1-10;Kidder v. Biddle (1895) 13 Ind. App. 653-660, 42 N. E. 293;Rauh v. Stevens (1898) 21 Ind. App. 650, 52 N. E. 997;Bixel v. Bixel (1886) 107 Ind. 534-536, 8 N. E. 614;Crawford v. Burke (1904) 195 U. S. 176-194, 25 Sup. Ct. 9, 49 L. Ed. 147.

There was no wrong in the beginning of the transaction, and the action was not and could not have been for the conversion of the 22 head of calves, which, in the language of the complaint, “the plaintiff placed in the hands of the defendant, as his agent, to sell and apply the proceeds,” etc., for the complaint shows that the calves were sold by the defendant, as he was authorized to do, and it is then charged that the proceeds were not applied as agreed, but were converted by defendant. In the case of Bixel v. Bixel, supra, it was said, on page 537: “In the possession and sale of the property, appellee was in no way a wrongdoer, because he was acting...