Wagner v. Barden

• Decision Date: 21 November 1895
• Docket Number: 1,684
• Citation: 41 N.E. 1067,13 Ind.App. 571
• Parties: WAGNER ET AL. v. BARDEN ET AL
• Court: Indiana Appellate Court

41 N.E. 1067

13 Ind.App. 571

WAGNER ET AL. v. BARDEN ET AL

No. 1,684

Court of Appeals of Indiana

November 21, 1895

From the Fulton Circuit Court.

Judgment affirmed.

I Conner, J. Rowley and W. W. McMahan, for appellants.

F. H Terry and E. Myers, for appellees.

OPINION

LOTZ J.

The appellant Ann Wagner brought suit against the appellees on a promissory note executed by them. At the same time of filing the complaint an affidavit and undertaking in attachment were also filed, and a writ of attachment was thereupon issued and placed in the hands of the sheriff, and on the same day was levied upon certain personal property of the appellee James Barden. Subsequently, the appellant, Alfred H. Robbins, filed his complaint, affidavit and undertaking, and made himself a party to the action. His claim was founded upon a promissory note executed by James Barden. The court ordered the causes to be consolidated.

James Barden answered separately in two paragraphs. The first was a general denial. The second only answered the attachment proceedings. The cause was tried by the court, and a finding made for the appellants as to the amounts due on their notes but as to the attachment proceedings the court found for James Barden, and rendered judgment accordingly. The only questions in controversy in this appeal relate to the attachment proceedings. The second paragraph of the answer of James Barden is not limited to the attachment proceedings, but is addressed to the whole complaint; but as no point is made against it in this respect, this defect will be deemed waived. The paragraph is badly constructed, but we think it substantially avers that on the day the writ of attachment was issued and placed in the hands of the sheriff James, Barden was a resident householder of Fulton county, Indiana, and that he thereafter continued to be such householder up to the time of filing his answer; that on the day the writ of attachment was issued in this cause the sheriff levied the same upon certain personal property belonging to him; that this property is fully described in a schedule, or exhibit, filed with the pleading; that before and at the time of the levy and seizure he claimed the property as exempt from seizure under the writ, and offered to file his schedule showing that all his property, real and personal, money on hand, or on deposit, in or out of the State, was worth less than $ 600, but that the sheriff refused to permit him to do so; that afterwards, and on the same day and while the property was in the possession of the sheriff, he made and duly verified a schedule of all of his property, as required by law; (this property was specifically described in an exhibit filed with the pleading); that the schedule contained a full, true and complete statement of all property owned by him on the day and at the time of issuing the writ; that the property is worth less than $ 600; that the action against him is founded upon a contract, and that he claimed and still claims the property as exempt from said writ; that he presented the schedule to the sheriff, and demanded that the sheriff return the property to him as exempt; that the sheriff...