Tipton v. Flack, 670A87
| Decision Date | 29 June 1971 |
| Docket Number | No. 2,No. 670A87,670A87,2 |
| Parties | Robert Joe TIPTON and Louisville and Nashville Railroad Co., Appellants, v. Charles A. FLACK, Appellee |
| Court | Indiana Appellate Court |
Robert D. Schuttler, Evansville, for appellants.
William Marshall, Princeton, for appellee.
This is an appeal from a judgment in garnishment issued January 28, 1970 by the Gibson Circuit Court.
The appellee, Charles A. Flack, brought a mortgage foreclosure against the appellants, Robert Joe Tipton and his ex-wife, Betty Joyce Boyken. A judgment was entered for the appellee in the sum of One Thousand Four Hundred Twenty-Seven Dollars and Eighty Cents (1,427.80). The execution on this judgment was returned by the sheriff showing that he failed to find any property subject to execution or nulla bona. Appellee then filed an affidavit for Supplementary Proceedings on March 7, 1969, which petition is as follows:
'COMPLAINT FOR SUPPLEMENTARY PROCEEDINGS
Charles A. Flack, being first duly sworn, says:
1. That he is one of the defendants in this action and that heretofore he obtained a judgment in this Court against the defendants, Robert Joe Tipton and Betty Joyce Boyken, formerly the wife of the defendant, Robert Joe Tipton, but now divorced, for $1,427.80 together with interest of six (6) per cent on said judgment from the date of judgment to date.
2. That on January 10, 1969, he caused an execution to be issued to the Sheriff of Gibson County, Indiana, and that on February 14, 1969, said Sheriff returned said execution with an endorsement thereon showing that he failed to find any property subject to execution.
3. That the defendant, Robert Joe Tipton, is a resident of Gibson County, Indiana.
4. That said judgment is still wholly unpaid.
WHEREFORE, the petition prays that an order issue to the defendant, Robert Joe Tipton, requiring him to appear before this court to answer under oath concerning his property within Gibson County, Indiana, and for all just and proper relief in the premises.'
At the conclusion of the hearing the court issued the following order on June 12, 1969:
'Comes now the defendant and cross-complaintant, Charles A. Flack by his attorney, William J. Marshall, and comes also the defendant, Robert Joe Tipton, in person and by his attorney, Robert D. Schuttler, and this being the day fixed for hearing on the defendant's Motion for Summary Judgment, the same having been filed and served on the cross-complaintant more than ten days before the hearing date hereof, and no opposing affidavits having been filed by said cross-complaintant, the same now comes on for hearing and determination by the court. And the court now examines said motion for summary judgment and having heard the arguments of counsel and being duly advised in the premises, now finds that there is a genuine issue as to material facts and that the defendant is not entitled to a judgment as a matter of law and that the motion for summary judgment should be overruled. And the court now overrules defendant Robert Joe Tipton's Motion for Summary Judgment.
And the court now hears evidence on the complaint for Supplemental Proceedings heretofore filed by the defendant and cross-complaintant, Charles A. Flack, and being duly advised in the premises now finds that the defendant, Robert Joe Tipton, should pay to the Clerk of the Gibson Circuit Court Ten (10%) per cent of his wages above $15.00 each week to be applied upon the judgment heretofore rendered in this cause against the said Robert Joe Tipton and in favor of Charles A. Flack and Mary Frances Flack, but that this order should be stayed until July 11, 1969.
IT IS THEREFORE ORDERED that the defendant, Robert Joe Tipton, pay to the Clerk of the Gibson Circuit Court ten (10%) percent of his wages above $15.00 each week to be applied upon the judgment heretofore rendered in this cause against the said Robert Joe Tipton and in favor of Charles A. Flack and Mary Frances Flack, but that this order be stayed until July 11, 1969.
IT IS FURTHER ORDERED that the defendant, Robert Joe Tipton, pay the costs of this action.'
Thereafter, on September 20, 1969, the appellee brought another action entitled 'Petition for Garnishment,' excluding the caption, which reads as follows:
'PETITION FOR GARNISHMENT
William J. Marshall, being first duly sworn, says:
1. That he is the attorney for the defendant, Charles A. Flack, in the above captioned cause.
2. That on May 22, 1967, judgment was rendered in favor of the defendant, Charles A. Flack, against the defendants, Robert Joe Tipton and Betty Joyce Boyken, formerly the wife of the defendant, Robert Joe Tipton, but now divorced, for $1,427.80 together with interest of six (6) per cent of said judgment from the date of judgment to date.
3. That on January 10, 1969, he caused an execution to be issued to the Sheriff of Gibson County, Indiana, and that on February 14, 1969, said Sheriff returned said execution with an endorsement thereon showing that he failed to find any property subject to execution.
4. That the defendant, Robert Joe Tipton, is a resident of Gibson County, Indiana.
5. That the defendant, Robert Joe Tipton, has earnings and income which he refuses to apply towards the satisfaction of said judgment and costs, and that said judgment, together with interest is now unpaid.
6. That the defendant, Louisville and Nashville Railroad Company, is the employer of the defendant, Robert Joe Tipton.
7. That the defendant, Charles A. Flack, is unable to determine the amount of property, income or proceeds that said employer is now or will be indebted to the said Robert Joe Tipton for wages, salary or earnings.
8. That said employer, Louisville and Nashville Railroad Company, has in its possession records from which the court may determine the income of said Robert Joe Tipton.
WHEREFORE, the affiant asks that an order issue from this court to the defendant, Robert Joe Tipton, fixing a time and directing that he appear and answer under oath concerning his income, proceeds and property in said county, and that a further order issue to Louisville and Nashville Railroad Company fixing a time and directing him to appear in this court to answer under oath concerning the wages, salary, earnings or commissions now due or to hereafter become due to said Robert Joe Tipton from said Louisville and Nashville Railroad Company, employer, and that an order for ten (10%) per cent over fifteen dollars ($15.00) earned by the defendant, Robert Joe Tipton, per week be a continuing lien upon his earnings until said judgment, the interest; thereon, and costs herein are fully paid.'
On this 'Petition for Garnishment' and after hearing, the court issued the following order:
'IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Sheriff of Vanderburgh County, Indiana levy upon the wages, salaries, commissions or earnings of the defendant, Robert Joe Tipton, from the employer of the said Robert Joe Tipton, and said employer, Louisville and Nashville Railroad Company, located in Vanderburgh County, Indiana, is ordered, as provided by law, to pay into the hands of the Sheriff of Vanderburgh County, Indiana ten (10%) per cent of any and all wages, salaries, commissions or earnings over the sum of $15.00 per week, now due or hereafter to become due to the said Robert Joe Tipton until the aforesaid judgment of $1,427.80 with interest of six (6%) per cent per annum from May 22, 1967, and the court costs are fully satisfied.
This order to be effective this date, unless a prior garnishment order or orders against Robert Joe Tipton is or are presently in effect and unsatisfied; in which event, this order to be effective as of the date as such prior order or orders is or are fully satisfied. Provided, However, that no execution shall issue herein for a period of six days from this date as provided by Rule 62 of the Indiana Rules of trial procedure.'
The only issue raised by this appeal is set forth in Appellants' Motion to Correct Errors:
'The decision of the court is contrary to law.
The judgment of the court entered January 31, 1970, is contrary to law since a similar judgment to withhold funds for the satisfaction of the judgment sued upon was entered by this court on June 12, 1969 and the same is res adjudicata as to any subsequent proceedings in garnishment. After securing the first judgment in garnishment the garnishment plaintiff filed another suit in garnishment a few months later and upon this complaint another garnishment order was entered. * * * The pleadings in this cause conclusively show that a trial and judgment rendered was had on June 12, 1969 in the same case and the same was in full force and effect and no action had been taken by the same plaintiff to have the same set aside and declared null and void as to make possible the filing of another garnishment suit. The parties to the complaint in garnishment in...
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