State ex rel. Wingler v. McIntosh

• Court: Indiana Supreme Court
• Writing for the Court: Howk, J.
• Citation: State ex rel. Wingler v. McIntosh, 100 Ind. 439 (Ind. 1885)
• Decision Date: 11 March 1885
• Docket Number: 12,169
• Parties: The State, ex rel. Wingler, v. McIntosh

100 Ind. 439

The State, ex rel. Wingler, v. McIntosh

No. 12,169

Supreme Court of Indiana

March 11, 1885

From the Washington Circuit Court.

The judgment is affirmed with costs.

S. H Mitchell and R. B. Mitchell, for appellant.

S. B Voyles and H. Morris, for appellee.

OPINION

Howk J.

In September, 1882, the appellant's relator, Francis A Wingler, was the owner of certain real estate in Washington county, and one Obadiah Simpson and Samuel Nuckles were each the owner of other lands, in the same county, adjoining the relator's real estate. On September 25th, 1882, in pursuance of written notice theretofore given to such adjoining land-owners, the relator proceeded with the county surveyor to have the corners and lines of his real estate established according to law. Thereafter the said Obadiah Simpson duly appealed from the survey, so made by the county surveyor, to the circuit court of Washington county, wherein such appeal was docketed and tried, under the name and title of Obadiah Simpson v. Francis A. Wingler. Afterwards, at the May term, 1883, of the court below, the trial of such appeal by the court resulted in a finding in favor of Simpson, and, over Wingler's motion for a new trial, judgment was rendered revoking and setting aside the survey so made as aforesaid by the county surveyor, and ordering and directing a new survey to be made, for the location and establishment of the corners and lines of the relator's real estate. From this judgment Wingler appealed to this court, where, on the 14th day of February, 1884, the judgment below was affirmed, at Wingler's costs. Wingler v. Simpson, 93 Ind. 201.

Afterwards an execution was issued out of the court below for the costs therein taxed against Wingler in the above mentioned appealed case of Simpson v. Wingler, which execution was directed to the sheriff of Washington county, and came to the hands of the appellee McIntosh, as such sheriff, to be executed. By virtue of such execution the relator levied upon the aforesaid real estate of the relator, and advertised the same for sale to satisfy such writ; whereupon the relator Wingler, who was then, and before and since, a resident householder of Washington county, made out and delivered to the appellee, as such sheriff, the schedule, inventory and affidavit, of and concerning his property, required of an applicant for exemption by sections 713 and 714, R. S. 1881, and thereon demanded that his real estate aforesaid should be set apart to him by the appellee as exempt from sale on such execution. The appellee, as sheriff, refused to comply with the relator's demand, or to set apart to him the aforesaid real estate as exempt from sale on such execution.

Upon the relator's verified complaint, stating substantially the facts above recited, an alternative writ of mandate was issued in this case, requiring the appellee as sheriff to set apart to such relator the aforesaid real estate, as exempt from sale on the execution then in appellee's hands, or to show cause why he should not do so. The appellee appeared, and his demurrer to the complaint and his motion to quash the alternative writ of mandate were sustained by the court. The relator declined to amend or plead further, and judgment was rendered against him for appellee's costs.

Errors are assigned here by the appellant's relator which call in question the decisions of the circuit court in sustaining the demurrer to the complaint and the motion to quash the alternative writ of mandate. These errors present for our decision substantially the same questions, namely, Is the case stated by the relator, in his complaint and alternative writ, a case wherein he may lawfully claim any of his property as exempt from sale on the execution in the hands of the appellee as sheriff? Do the facts stated by the relator show that the execution in appellee's hands was "for any debt growing out of or founded upon a contract, express or implied?" Was the judgment for costs, upon which such execution issued, the relator's debt growing out of or founded upon a contract, express or implied? These questions...