Taylor v. Johnson

• Decision Date: 25 January 1888
• Docket Number: 13,123
• Citation: 15 N.E. 238,113 Ind. 164
• Parties: Taylor et al. v. Johnson
• Court: Indiana Supreme Court

15 N.E. 238

113 Ind. 164

Taylor et al. v. Johnson

No. 13,123

Supreme Court of Indiana

January 25, 1888

From the Starke Circuit Court.

The judgment is reversed, with costs, and cause remanded, with leave to plaintiff to amend his complaint.

G. W Beeman and F. Church, for appellants.

H. R Robbins, J. M. Howard and T. J. Merrifield, for appellee.

OPINION

Howk J.

In this case, all the appellants jointly, and appellant Mary M Thomas separately, who were all defendants below, assigned here as the only error for which they ask the reversal of the judgment herein, that appellee's complaint does not state facts sufficient to constitute a cause of action.

In his complaint, appellee, Johnson, alleged that, on the 13th day of September, 1883, he recovered judgment against defendant John A. Taylor, in the Pulaski Circuit Court, for the sum of $ 3,000, in an action against said John A. Taylor for damages for an assault and battery by him committed on the person of plaintiff, Johnson, on July 18th, 1882; that while said judgment was in full force, in pursuance of a fraudulent combination between defendant John A. Taylor and his co-defendants, Lydia M. Taylor, Mary M. Thomas and Lyman F. Thomas, and for the purpose of hindering, delaying and defrauding his, John A. Taylor's, creditors and plaintiff, Johnson, defendants John A. Taylor and Lydia M. Taylor, his wife, on the 15th day of September, 1883, conveyed to defendant Mary M. Thomas, wife of defendant Lyman F. Thomas, lots numbered 4 and 7 in block No. 2 of Rose's addition to the town of Hamlet, in Starke county, Indiana, a copy of which conveyance was filed with and made part of such complaint; that defendant Mary M. Thomas received and accepted such conveyance for the fraudulent purpose aforesaid, and with full knowledge of the fraudulent purpose for which such conveyance to her had been made as aforesaid.

Appellee Johnson, further averred that, on the 31st day of July, 1882, prior to the execution of the conveyance aforesaid, an order of attachment was duly issued out of the clerk's office of the court below, a copy of which order or writ was filed with and made part of such complaint; that the lien created by said order or writ still attached to the above described real estate; that such order or writ was placed in the hands of the sheriff of Starke county, commanding him to seize the personal property, attach the lands of the defendant in Starke county, not exempt from execution, or enough thereof to satisfy plaintiff's claim; that said order or writ, on the day it was placed in such sheriff's hands, to wit, July 31st, 1882, became and had since continued to be, "until the present time" (October 15th, 1885), a lien on the above described real estate; that, on September 13th, 1883, judgment was rendered in plaintiff's favor and against defendant John A. Taylor for $ 3,000, which judgment was still unsatisfied, and was so rendered in and by the Pulaski Circuit Court, on a change of venue from the court below; that, on the 15th day of September, 1883, the date of the execution of the aforesaid fraudulent conveyance by defendants John A. Taylor and Lydia M. Taylor, his wife, to their co-defendants, all such defendants were fully aware that said conveyance was fraudulent, and that no consideration was paid therefor; that such conveyance was made for the sole purpose of cheating, hindering or delaying the collection of the aforesaid judgment, of which purpose all the defendants were fully apprised at the time such judgment was so rendered by the Pulaski Circuit Court; that, on the 14th day of June, 1884, plaintiff caused an execution to be issued by the clerk of the Pulaski Circuit Court, directed to the sheriff of Starke county, commanding him to levy the said sum of $ 1,583.38 of the property of defendant ...